Format Restrictions on Televised Political Advertising: Elevating Political Debate Without Suppressing Free Speech

Indiana Law Journal

Volume 67 Issue 3 Article 3

Summer 1992

Timothy J. Moran United States District Court Eastern District of Texas

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Part of the Communications Law Commons, and the Law and Politics Commons

Recommended Citation Moran, Timothy J. (1992) "Format Restrictions on Televised Political Advertising: Elevating Political Debate Without Suppressing Free Speech," Indiana Law Journal: Vol. 67 : Iss. 3 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol67/iss3/3

This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Format Restrictions on Televised Political Advertising: Elevating Political Debate Without Suppressing Free Speech TnioTY J. MoRAN*

The First Amendment ... is not the guardian of unregulated talkative- ness .... What is essential is not that everyone shall speak, but that everything worth saying shall be said.'

INTRODUCTION

Contemporary political advertising presents an apparent dilemma for a society striving to achieve the twin first amendment goals of robust uninhibited debate and informed self-government. Traditional free speech principles hold that political speech, particularly when made in connection with elections, should be completely free of governmental restraint. However, many observers contend that the nature of political advertising impedes self- government by creating advertising that at best lacks substance and at worst obscures and distorts crucial issues. This Article analyzes current proposals that would elevate political debate by regulating the format of political advertising. It concludes that proposals to restrict political advertising to a narrow issue-oriented format violate the first amendment because they substantially reduce the quantity and communicative impact of political speech. However, similar goals can be achieved by directly subsidizing political advertising-by vouchers or the award of free air time-and by conditioning the receipt of this benefit on the candidate's agreement to conform to an issue-oriented format of suitable length. This Article is divided into three parts. Part I summarizes what political and media observers have found about political advertising. It concludes that contemporary advertising does not promote a meaningful discussion of issues and may distort them. However, research indicates that a "talking- heads" format, in which the candidate simply addresses the camera without the benefit of music or additional images, tends to produce more informative and issue-oriented advertising. Part I concludes by summarizing proposals to make advertising more informative and issue oriented.

* Law Clerk, Honorable William Wayne Justice, Eastern District of Texas. J.D., 1991, Harvard University. The author thanks Professor Kathleen Sullivan, Harvard Law School, for her comments and critical insight throughout the writing of this Article. Thanks also to Fred Cate, Newton Minow, and Kathleen Mulligan, who read and commented on earlier drafts. 1. A. MELEOwH, POLITICAL FREEDOM: THE CONSTITUTIONAL PowERs oF THE PEOPLE 26 (1960). INDIANA LAW JOURNAL [Vol. 67:663

Part II proposes a constitutional framework for analyzing format restrictions on political advertising. It argues that the extent of infringement on individual autonomy-the individual's interest in advertising in whatever manner she chooses-is largely irrelevant to a proper first amendment analysis. Instead, a restriction should be judged by the degree to which it advances the government's interest in informed and rational political debate without substantially reducing the quantity of speech, decreasing its communicative potential, inhibiting certain views, or creating the opportunity for dangerous governmental interference with political speech. A restriction that advances the government's interest in informed political debate and is narrowly tailored to minimize the above threats to free expression is constitutional. Part III analyzes in depth four proposals to regulate the form of a candidate's political advertising. One proposal would require that the candidate appear personally in any advertisement that attacks another candidate. A second proposal would require that all advertising conform to a talking- heads format. Part III argues that both of those proposals are unconstitutional because they curtail the airing of a substantial degree of political speech that can provide important information to voters and increase the voters' participation in the political process. A third proposal, strengthening disclosure and identification requirements, probably is constitutional if the requirements are narrowly tailored. However, it is doubtful that this proposal would significantly raise the level of public debate. The most promising proposal is to add issue-oriented advertising to the political marketplace by giving candidates free advertising, through either broadcast vouchers or free air time. Candidates who accepted this benefit would be required to produce advertising that uses a talking-heads format with a minimum length suitable to the development and discussion of issues. Because candidates would remain free to use their own funds to produce advertising of their choice, regardless of whether they accepted the free advertising, this subsidy proposal would not suppress any speech. This proposal is, therefore, constitutional.

I. THE NATURE OF POLITIcAL ADVERTISING ON TELEVISION

A. The ControversialRole of Political Advertising

Televised political advertising (spots) substantially affects the content and focus of election campaigns. 2 Spots account for a substantial percentage of

2. Books documenting the importance of televised political advertising include: E. DIAMOND & S. BATES, TiM SPOT: Tim RISE OF POLITICAL ADVERTISING ON TELEVISION (rev. ed. 1988); K. JAMIESON, PACKAGING THE PRESIDENCY: A HISTORY AND CRrrIcisM OF PRESIDENTIAL CAM- 1992] FORMAT RESTRICTIONS ON ADS total election costs.3 Consultants who create such advertisements are highly sought after and play an increasingly important role in the substantive decisions of the campaign. 4 And because spots permit candidates both to communicate directly to the voter and to target certain voters in particular,5 they are often the most effective source of information about candidates for voters. 6 The rising importance of spots, however, has generally not been ap- plauded. Since spots first became prominent, critics have charged that spots distort the issues, lack substance, and harm the political process.7 Since the mid-1980s, such criticisms have intensified and have often been coupled with calls for comprehensive legislative reform.8 The public is also dissatisfied

PAiGN ADvmTISo (1984); R. JOSLYN, MASS MEDIA AND ELECTIONS 195-214 (1984); M. KERN, 30-SECoND POLTICS: PoLrrxcAL ADVERTISING IN THE EIGHTImS (1989); NEw PERPspcTIvES ON PoTcAL ADvERTISING (L. Kaid, D. Nimmo & K. Sanders eds. 1986) [hereinafter NEw PERSPECTVEs]; M. PFAU & H. KENSxI, ATTACK POLMcs: STRATEGY AND DEFENSE (1990); R. SPERO, TnE DupIN OF THE AMERICAN VOTER: DIsHoNEsTY AmD DECEPTION IN PREsmENTAL TELEVISION ADVERTSNo (1980). 3. In 1984, Walter Mondale and Ronald Reagan spent a total of $50 million on television advertising. Diamond & Marin, Spots, AM. BEAvoRAL SCmNTIST, Mar.-Apr. 1989, at 382. In 1980, television advertising constituted 70% of Ronald Reagan's total advertising budget and accounted for nearly half of the total federal election funds received. Jimmy Carter spent 74% of his total advertising budget on television advertising. Devlin, An Analysis of Presidential Television Commercials, 1952-1984, in NEw PERSPECTrVES, supra note 2, at 21. Below the presidential level, television advertising generally consumes on average 25% of a congressional candidate's campaign budget. L. SAATo, PAYING FOR ELECTIONS 26 (1989); Cundy, Political Commercials and Candidate Image, in NEw PERsPEcTIvEs, supra note 2, at 210, 211. 4. See generally S. BLuumNTHAL, THE PERMANENT CAMPAIGN (1982); L. SABATO, THE RISE OF POLICAL CONSULTANTS: NEw WAYS OF WINNING ELECTIONS (1981). 5. R. JOSLYN, supra note 2, at 73-76. 6. See T. PATTERSON & R. McCLuRE, POLITICAL ADvERTISING: VOTER REACTION TO Tm.-visED PoLTcAL COmmERCIAXS 8 (1974) (Political commercials are an important source of information for certain voters.). See generally Just, Crigler & Wallach, Thirty Seconds or Thirty Minutes: What Viewers Learn from Spot Advertising and Candidate Debates, 40 J. Comm. 3, 12 (1990) (Voters may learn more about candidates from advertising than from candidate debates.). 7. See, e.g., VoTER's Tm: REPORT OF TH TWN CENTURY FUND COMMssION ON CAmPAIGN COsT IN THE ELECTRONIC ERA 2 (1969) ("[D]oes a series of short 'spot' announce- ments contribute as much to the voter's knowledge of the issues and of the candidates as longer programs where issues are discussed and candidates are exposed to view? The answer is almost certainly no."); T. PATTERSON & R. MCCLuRE, supra note 6, at 7. Critics contend that televised ads fail to provide the voters meaningful information, that they degrade the electoral process by selling candidates as if they were soap, that they emphasize image-making while ignoring political issues, and that they are designed to influence the least interested-and most easily misled- voters. Id. 8. See Hinerfeld, Why PoliticalAds Subtract, WASH. MONHaY, May 1990, at 12, 21-22; Kamber, PoliticalDiscourse Descends into Trivia, ADvERTisiNG AGE, Feb. 25, 1991, at 20; Daley, T. V. Holds Power in Politics: Tool of Enlightenment Dims Amid Hard Campaigns, Chicago Tribune, Nov. 19, 1990, at 1, col. 2; Shogan & Rosenthiel, Latest Wave of Campaign Reform Homes in on Media, L.A. Times, May 7, 1990, at Al, col. 1 (summarizing criticisms and proposed solutions). INDIANA LAW JOURNAL [Vol. 67:663 with political advertising.9 Criticism typically has focused on three aspects of contemporary spots: the failure of commercial advertising to present detailed discussion of substantive issues; the use of commercial advertising techniques; and the dominance of 30-second spots over longer ones.

B. The Content of PoliticalAdvertising

1. Image Over Substance

Political advertising on television today rarely presents detailed information about substantive policy preferences and proposals.10 Instead, political advertising concentrates on what loosely can be called image. A substantial percentage of contemporary advertisements, for example, focus on the personal attributes of a candidate, presenting her as a proven leader, as a person in touch with working people." Other advertisements associate a candidate with popular cultural myths or values. Such advertisements include references to topics such as family values, American ingenuity, or the scourge of crime and drugs. 12 Other advertisements may focus on issues only in a vague and general way so as to appeal to commonly held values rather than to discuss policy choices.13 Of considerably more substance is advertising that either highlights the past accomplishments of a candidate or details the policy failures of an opponent. 14 However, the information presented through such advertising is necessarily limited both by the record

9. P. TAYLOR, SEE How TIY RuN: ELEcTmI TIm PRESIDENT IN AN AGE OF MEDIACRACY 7 (1990). Some observers have speculated that dissatisfaction with political advertising is linked to lower voter turnout, but no evidence directly supports this contention. See Clean Campaign Act of 1989: Hearings on S. 999 Before the Subcomm. on Communications of the Senate Comm. on Commerce, Science, and Transportation, 101st Cong., 1st Sess. 22 [hereinafter 1989 Hearings] (statement of Curtis Gans, Director, Committee for the Study of American Electorate). 10. Joslyn, Political Advertising and the Meaning of Elections, in NEw PERSPECTVES, supra note 2, at 139, 142-50 (Only 50 of political commercials contain specific policy preferences. An additional 1001o contain fairly specific proposals.); R. JosLxN, supra note 2, at 43 (Only 20% of political advertisements contain information specific enough about policy preferences that a viewer could use it to predict a candidate's future policy behavior.). 11. M. KERN, supra note 2, at 40 (Political advertisements focus much more on impressions of a candidate than on public policy preferences.); Joslyn, supra note 10, at 162 (Fifty-seven percent of political advertisements concern the personal attributes of a candidate.). 12. Joslyn, supra note 10, at 173-78; see also Nimmo & Felsberg, Hidden Myths in Television PoliticalAdvertising, in NEw PERSPECTIvS, supra note 2, at 248. 13. M. KERN, supra note 2, at 51 (Issues are mentioned in 89% of political ads, but such references are generally vague.); Joslyn, supra note 10, at 149 (Most advertisements that address issues contain "bogus policy appeals" that, because they appeal to "consensually held values," "are without risk to the candidate and are a considerable distance from the types of policy alternatives that public officials face." (emphasis in original)). 14. Joslyn argues that such retrospective policy appeals have considerable educative potential. Joslyn, supra note 10, at 151. 1992] FORMAT RESTRICTIONS ON ADS of the two candidates and by the extent to which the information is useful to the candidate who is making the advertisement. As a result, retrospective advertisements generally do not offer a detailed or comprehensive discussion of what policies a candidate should and will pursue in the future.15 As Joslyn observes, "[tielevised ads simply do not typically provide the public with the information flow necessary to permit the public to learn very much about the contrasting 'bundles' of policy promises, preferences, or intentions represented by candidates." 1 6

2. Commercial Advertising Techniques

The commercial techniques that dominate political advertising also make advertising singularly ineffective at promoting meaningful discussion of prospective policy choices. Political advertising today uses much of the same techniques for selling candidates as commercial advertising employs to sell products. 17 Commercial advertising is heavily regulated, 8 however, while censorship of candidates' spots is forbidden. 19 The result is that the same techniques, that Congress has determined are potentially dangerous enough to require regulation when promoting commercial products are allowed free reign when they are used to promote political candidates. 20 Several techniques are worth detailed analysis. First, political advertising uses referential techniques in which either the candidate is associated with something universally acknowledged to be good or the opponent is linked to something generally acknowledged to be evil. 2' The disturbing aspect of this technique is that it does not argue in any rational sense; it merely asserts. Thus, advertisements have implicitly associated opponents with

15. See id. at 181, 182-83. 16. Id. at 182. 17. See M. KERN, supra note 2, at 23-24. The similarity between political and commercial advertising techniques has been frequently explored. See L. SABATO, supra note 3, at 174-79; R. SPERO, supra note 2; Albert, The Remedies Available to Candidates Who Are Defamed by Television or Radio Commercials of Opponents, 11 VT. L. REv. 33, 54 (1986). 18. The Federal Trade Commission (FTC) regulates false and deceptive advertising pursuant to its authority to prohibit "unfair or deceptive acts or practices in or affecting commerce." 15 U.S.C. § 45(a)(1) (West Supp. 1991). For examples of the FTC's regulation, see Albert, supra note 17, at 49-51. 19. 47 U.S.C. § 315(a) (1988) (Licensees may not censor advertisements aired by candidates.). 20. It has been suggested that because political commercials sell candidates like soap they should be regulated as heavily as commercial advertising. See R. SPERO, supra note 2, at 4-9 (arguing that networks would refuse to run almost all presidential campaign commercials if they subjected them to the same standards that they do commercial advertising); Hinerfeld, supra note 8, at 21. 21. M. KERN, supra note 2, at 30; Jamieson, The Evolution of Political Advertising in America, in NEw PEasPECTrvES, supra note 2, at 14-18. INDIANA LAW JOURNAL [Vol. 67:663 everything from nuclear warn to rioting in the streets. 23 The favored candidate, meanwhile, is associated with good things such as family or pros- perity. 24 In either case, the advertisements make the association without offering any evidence to support it.21 Such advertisements make arguments by visual associations that "defy conventional logic" and that could not 26 plausibly be made verbally. There is some indication that an association must have enough plausibility to resonate with the viewer. 27 Thus, implicit accusations that Barry Gold- water would start a nuclear war "worked," 28 while advertisements in 1984 associating Ronald Reagan's presidency with pending economic collapse did not.29 However, such referential advertising has power not because it offers information to persuade viewers, but because it capitalizes on fears and 30 uncertainties that the viewers already have and it intensifies them. A second important feature of contemporary political advertising is its preference for highly stylized images over the use of verbal messages and facts. 1 Stylized images "are more powerful than words and words cannot

22. Lyndon Johnson's famous 1964 advertisement "Daisy" featured a young girl picking flowers followed by a nuclear explosion. The implicit but unspoken assertion was that Barry Goldwater would bring about nuclear war. See E. DIAMoND & S. BATES, supra note 2, at 127- 33; K. JAMIESON, supra note 2, at 198-200. 23. Richard Nixon's advertisements in 1968 intercut scenes of the war in Vietnam, poverty in Appalachia, and rioting outside the Democratic convention with pictures of Hubert Hum- phrey. See Jamieson, supra note 21, at 16; Jamieson, Our Appalling Politics: For Televised Mendacity, This Year is the Worst Ever, Wash. Post, Oct. 30, 1988, at Cl, col. 1. 24. See, e.g., Jamieson, supra note 21, at 16 (describing John F. Kennedy advertisement juxtaposing pictures of Kennedy with pictures of fields of grain, the Liberty Bell, and prospering factories); Diamond & Marin, supra note 3, at 384-85 (describing George Bush advertisement showing Bush with his granddaughter). 25. In associational political advertisements: [iThe evidence required to sustain the implied linkage between the associated images is absent. It is absent as well in product ads that link use of the product with beauty, youth, fame, fortune, and friendship. In that they both rely on argument by visual associations, this type of ad sells politicians the way soap is usually sold. Jamieson, supra note 21, at 17. 26. K. JAMIEsoN, supra note 2, at 198; Jamieson, supra note 21, at 17. 27. M. PFAU & H. KENSKI, supra note 2, at 24. 28. Viewers of "Daisy" apparently projected their own predispositions into the ad and remembered hearing references to Barry Goldwater and an attack on his policies when neither was actually present. K. JAMIESON, supra note 2, at 200. 29. Walter Mondale's 1984 advertisement "Rollercoaster" featured riveting shots of a roller coaster climbing a steep hill juxtaposed with an offscreen announcer's warning that President Ronald Reagan's policies would cause a recession. Viewers reported feeling anxiety but did not believe that Reagan would cause these problems. M. KERN, supra note 2, at 122. 30. See Winsbro, Comment, Misrepresentationin PoliticalAdvertising: The Role of Legal Sanctions, 36 EMORY L. J. 853 (1987). 31. M. K sa, supra note 2, at 23 (A basic advertising principle is that "simple print- facts, unadorned by visual and aural persuasion-can] not compete with visual imagery."). 19921 FORMAT RESTRICTIONS ON ADS rebut images. ' 3 2 As a result, images can intensify the effectiveness of what would be barely plausible assertions if made verbally. Furthermore, once made, the image may remain evocative even if the factual basis upon which it is based is later rebutted. The famous "Revolving Door" advertisement of the 1988 George Bush campaign illustrates this principle.13 A number of voters said that they believed that Michael Dukakis, Bush's opponent, was "soft on crime." Yet, when asked to explain why they had come to believe that, they did not refer to any facts or statistics but instead responded that Dukakis had created a "revolving door" prison policy. Thus, the revolving 34 door image became a surrogate for facts and rational argumentation. Another problem is that advertisers can easily exploit the visual aspect of televised advertising to creat false and misleading impressions.35 An early Dwight D. Eisenhower advertisement, "Eisenhower Answers America," gave the impression that Eisenhower was directly addressing questioners when in 3 6 actuality both the answers and the questions had been taped independently. A John F. Kennedy advertisement used cuts and splices from the televised debate to make it appear that Richard M. Nixon was mindlessly nodding his head in agreement with Kennedy on a variety of statements. 37 As televised advertisements have become more sophisticated, their deceptiveness has become more subtle. The Bush campaign's revolving door advertisement, for example, made the accurate statement that the Massachusetts prison furlough program gave furloughs to first-degree murderers who were not entitled to parole. This was followed by the statement that 268 escaped, and the words "268 ESCAPED" were superimposed on the screen. In actuality, 268 prisoners had escaped from the program, but only 4 of them had been convicted of murder. The juxtaposition of words and pictures 38 gave the false impression that 268 first-degree murderers had escaped. Similarly, another Bush advertisement showed a filth-ridden Boston Harbor and zeroed in on a sign that warned "Danger. Radiation. No Swimming." The sign, however, came from a Navy yard that formerly repaired nuclear submarines. Although the sign had nothing to do with the pollution of

32. Jamieson, Context and the Creation of Meaning in the Advertising of the 1988 Presidential Campaign, 32 AM. BEHAVIORAL SCIENTIST, Mar.-Apr. 1989, at 344; see also M. KERN, supra note 2, at 23. 33. The advertisement featured prisoners walking through a revolving door, while an offscreen announcer details statistics about the.prison furlough program in Massachusetts. See Devlin, Contrasts in Presidential Campaign Commercials of 1988, 32 AM. BEHAVIORAL ScI- ENTIST, Mar.-Apr., at 389, 395. 34. Jamieson, supra note 32, at 419. 35. Jamieson, supra note 21, at 16 ("[Television's ability to reconfigure reality" presents a "danger" that "false inferences" will be made.); Hinerfeld, supra note 8, at 13. 36. Jamieson, supra note 21, at 16. For a description of the advertisement, see E. DAMOND & S. BATES, supra note 2, at 53-60. 37. Jamieson, supra note 21, at 16. 38. Devlin, supra note 33, at 395; Jamieson, supra note 32, at 416. INDIANA LAW JOURNAL [Vol. 67:663

Boston Harbor, its situation in the commercial gave the false impression that it did.39 By using images, an advertiser can make false impressions that would probably be too apparent if made verbally. Words by their nature must be definitive if they are to have cognitive meaning. By contrast an image can generate a number of impressions. Thus, Bush's revolving door advertisement makes a statement that is technically true. The false inference comes from the totality of the advertisement: the juxtaposition of the statements, the words visually imposed on the screen, and the continuous procession of prisoners coming through the revolving door. Because the advertisement makes no explicitly false statement, it is difficult to attach culpability for the misleading impression on either the candidate or the campaign; any deceptiveness may seem unintentional. 40 The visual nature of advertising also enables campaigners to make subtle appeals to the unconscious prejudices or predispositions of a voter. For example, Kern explains how an advertisement featuring a professional man and woman waiting for a bus exploits fears that male voters may have of being overtaken by women in the workplace. She: Is your Democratic congressman for higher taxes? He: I'd better find out. (The bus pulls up, she gets on it, and it pulls away. He is left behind,4 looking confused.) I'd better find out what time the next bus is too. ' As Kern notes, the advertisement links Democrats "with the governmental Goliath in a fashion designed to suggest that the male professional ... might ... be outdistanced by a female colleague if he does not vote Republican."'42 The advertisement covertly appeals to sexism but in a way that is not verbalized. Similarly, advertisements that feature children and adults discussing a candidate appeal to voters' sense of obligation to their parents. 43 Still other advertisements have been accused of appealing to racism. 44 In each case, the pattern is the same. The advertisement makes

39. Jamieson, supra note 23. 40. Jamieson makes a similar observation with regard to the Kennedy advertisement showing Nixon nodding his head. "Had Kennedy proclaimed at the moment before or after the edited insert, 'Nixon agrees with me' he would have been lying. Instead the ad showed Nixon seemingly agreeing and thus made the same argument more forcefully." Jamieson, supra note 21, at 16. 41. M. KER.N, supra note 2, at 102. 42. Id. 43. In one advertisement of this type, a granddaughter approaches her grandfather and proudly tells him she will be voting for the first time. The grandfather gently urges her to vote Republican because the Democrats will raise taxes. Id. at 103. 44. One particularly famous Jesse Helms advertisement ran in the 1990 Senate campaign against challenger Harvey Gant shows white hands crumpling a rejection letter, while an offscreen announcer says that the job went to a minority to fill a quota. See Kinsley, What's Really Fair, Tita, Nov. 19, 1990, at 124; Race Baiting Wins Again: Helms Wins a Fourth Term by Exploiting White Anxieties, Tam, Nov. 19, 1990, at 43. 19921 FORMAT RESTRICTIONS ON ADS an explicit statement about a campaign issue, but the visual images implicitly appeal to a prejudice or predisposition. Because the latter appeal is implicit, the advertisement may appeal to those who share the prejudice or predisposition without alienating those who do not.4

3. Brevity of Political Advertisements

A final hallmark of contemporary advertisements is their brevity-the average spot is only thirty seconds long, or less." Several factors have contributed to this phenomenon including the high cost of advertising,47 the perception that shorter advertisements are more effective at reaching the audience necessary to win an election, 4" and the unwillingness of broadcasters to air longer advertisements. 4 Whatever the reason, however, policy choices and complex issues generally cannot be explained in thirty seconds. As Jamieson observes, Although thirty and sixty second spots can capsulize a candidate's position on central issues they lack the time needed to specify the evidence and warrants that lead to that position. What spots do best is telegraph to the electorate the candidate's agreement or disagreement with positions voters already embrace. What they cannot do well is educate the electorate about the desirability of one position over the other or familiarize the electorate with the subtleties of complex matters such as the relationship between the budget deficit and interest rates. Doing either requires longer than sixty seconds. 0 The short spot also encourages advertisers to make emotional rather than rational appeals and to distort the truth. Advertiser Charles Guggenheim notes, Ask any seasoned media adviser and he will tell you what he can do best given 30 seconds. Create doubt. Build fear. Exploit anxiety. Hit and run. The 30- and 60- second commercials are ready-made for the

45. See M. KERN, supra note 2, at 144 (describing how Senator Jesse Helms uses this tactic in his campaigns). 46. Id. at 4. (Thirty-second advertisement has been dominant since 1976.); see also E. DIAMOND & S. BATEs, supra note 2, at 381-83; Jamieson, supra note 21, at 13. 47. The rising cost of television advertising encourages candidates to use their resources sparingly. See M. KERN, supra note 2, at 4 (Cost of airing advertisements longer than thirty seconds is prohibitive below the presidential level.). 48. Viewers are more likely to stay with shorter spots of 30 to 60 seconds. Longer spots tend to preach to the converted and lose a significant portion of the initial viewing audience. E. DIAMOND & S. BATES, supra note 2, at 382. 49. 1989 Hearings, supra note 9, at 53 (statement of Charles Guggenheim, President, Guggenheim Productions, Inc.); see also CBS v. F.C.C., 453 U.S. 367, 370-73 (1981) (noting difficulty of obtaining longer advertising during prime time). 50. Jamieson, supra note 21, at 13; see also M. KERN, supra note 2, at 4 (noting difficulty of explaining complex ideas in ads). INDIANA LA W JOURNAL [Vol. 67:663

innuendo and half-truth. Because of their brevity, the audience forgives their failure to qualify, to explain, to defend.5' Thus, the brevity of spots impedes their ability to foster meaningful debate on prospective policy choices.

C. Problems Posed by PoliticalAdvertising

The foregoing analysis indicates that the current nature of political advertising should be of serious concern. Political advertisements simply do not contain detailed discussion of prospective policy choices. This impedes democratic self-government. If voters cannot discern from a campaign how a candidate intends to govern or what the range of policy choices facing the government is, their ability to participate in government by voting is diminished. 52 Also of concern is the extent to which advertisers can and do exploit the medium to make advertisements that are deceptive, covertly appeal to prejudices, or do nothing more than identify a candidate with consensually held values. These problems not only suggest that the electorate may not get the information it needs to govern from political ads, but also that the electorate may be distracted by the information it does receive." If the proper test for any mode of political communication is its ability to "enable and constrain politicians to address the public in as intelligible and illuminating terms as possible ... [so that] people [can] make choices in accord with the politics they wish[] to support,"5 4 political advertising has probably failed. One must be careful not to romanticize the past in criticizing the present state of affairs. The origins of the contemporary political commercial can be found in the hand-carried transparencies of the mid-to-late 1800s, which relied on bald assertion and mindless association at least as much as

51. 1989 Hearings, supra note 9, at 54 (prepared statement of Charles Guggenheim, President, Guggenheim Productions, Inc.). 52. Joslyn, supra note 10, at 182-83 ("[T]elevised political advertising interferes with seeing elections as a choice between alternative policy futures and prevents election outcomes from representing the electorate's 'mandate' for a particular program of governmental action."). 53. Joslyn sums up the problem as follows: The world of televised, campaign commercials is much more likely to delimit citizen understanding to perceptions of candidate personas and the recognition of cultural icons and values than to an apreciation [sic] of policy alternatives; much more likely to restrict elections to choices between competing images of candidate personalities, unbalanced perceptions of incumbent and challenger records, or a choice between participation or nonparticipation than to a choice between competing programs of governmental action or political belief; and much more likely to reveal a truncated message-as-sent by the electorate than a message rich with preference or guidance for a future course of governmental action. Id. at 183. 54. Blumler, PoliticalCommunication: Democratic Theory and Broadcast Practice, 3 MAss COMM. REv. YEARBOOK 621, 633-34 (1982). 19921 FORMAT RESTRICTIONS ON ADS contemporary advertisements. 5 In the past, however, banners and slogans were "intended to draw people to the meeting where they could hear the candidate or his or her surrogate speak about the issues and how they will deal with them"; today "ads alone ... are becoming the campaign for many increasingly uninvolved voters."'1 The result can be that elections become less of a choice between contrasting programs than a "competition between media advisers. " 57 As two experts note, the prevalence of high-gloss, high-tech media campaigns may be trivi- alizing electoral politics.... When the polispots become just one more entertainment to watch, it will become harder and harder for the audience to regard them as important .... The result may be a distancing between candidate and citizen; voting may become just one more activity being commended to us by television purveyors of goods and services. We watch the free show, but we don't necessarily get involved; we are passively entertained.s8 The consequences for democracy may be severe indeed. Obviously, how much damage is done to our political system by the lack of substantive political discussion in political advertising depends on one's view of the proper function of elections in a democratic society. If the purpose of elections is to make substantive policy choices, as many political scientists argue, 59 the lack of substantive discussion in political advertisements obviously undermines that purpose. Political scientists also suggest, however, that elections are valuable if leaders are selected on the basis of intangible, personal attributes, a purpose that image-oriented advertising furthers. 0 The very existence of this debate, however, demonstrates that both functions are important. A wise choice by the electorate almost certainly requires both a rational evaluation of a candidate's proposals and a less articulatable judgment of the character of that candidate. One, therefore, need not think that issue-oriented, rational political advertisements are superior to image-oriented advertisements to be concerned about the current state of political advertising. Substantive discussion of prospective policy choices should at least be an important factor in our choice of leaders. To the extent that current advertising does not stimulate this discussion, political debate is impoverished.

55. Jamieson, supra note 21, at 3-7; see also M. KERN, supra note 2, at 212 ("[A]dvertising [for candidates] has always been 'catchy' and sloganistic."). 56. M. KERN, supra note 2, at 212. 57. Clean Campaign Act of 1985: Hearings on S. 1310 Before the Subcomm. on Com- munications of the Senate Comm. on Commerce, Science, and Transportation, 99th Cong., 1st Sess. 12, 14 (1985) [hereinafter 1985 Hearings] (statement of Curtis Gans, Director, Committee for the Study of the American Electorate). 58. E. DiAMoND & S. BATES, supra note 2, at 386. 59. Joslyn, supra note 10, at 142, 183. 60. See id. INDIANA LAW JOURNAL [Vol. 67:663

D. The Inadequacy of Existing Mechanisms for Improving the Quality of PoliticalDebate During Election Campaigns

1. Regulating False Statements in Political Advertising

The current regulatory framework for political advertising fails to address the previously mentioned problems because it is limited almost exclusively to regulating false speech.6' A candidate is liable for damages if she defames another candidate. 62 In addition, some states and the federal government provide criminal sanctions for making false statements in political advertisements. 63 Courts rarely will grant injunctive relief to prevent a fraud from being perpetrated on voters unless there exists explicit statutory authority for the injunction.64 However, a prohibition on false statements in political advertising does not necessarily ensure that the advertisements will be more informative or constructive in generating political debate. Furthermore, in practice, prohibitions on false statements are construed so narrowly and applied so belatedly that the effect on political advertising is minimal. Courts severely restrict prohibitions on falsity in order to give adequate 6 breathing space to political speech. Under the New York Times v. Sullivan 1 standard, only intentionally or recklessly false statements of fact about a political candidate can be regulated.6 Furthermore, courts generally require

61. See Albert, supra note 17, at 57; Developments in the Law-Elections, 88 HARv. L. REv. 1111, 1273-86 (1975); House, PriorRestraints on Campaign Speech in California, 14 W. ST. U. L. REv. 409 (1987); Neel, Note, Campaign Hyperbole: The Advisability of Legislating False Statements Out of Politics, 2 J.L. & POL. 405 (1985); Winsbro, supra note 30. 62. Albert, supra note 17, at 41-44. For representative cases in which candidates have sued for defamation by false statements in political ads, see id. at 45-49. 63. Neel, supra note 61, at 406 n.5 (Seventeen states prohibit the use of false statements in political campaigns.); 2 U.S.C. § 441h (1988) (Candidate for federal office prohibited from fraudulently misrepresenting herself as member of political party.). There is no reported decision of a prosecution brought under this section. 64. Compare Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910 (1974) (complaint that winner of primary election had been a sham candidate who planned to withdraw after winning so that party bosses could pick candidate stated federal cause of action) and Tomei v. Finley, 512 F. Supp. 695 (N.D. Ill. 1981) (state Democratic-affliated party- named the Representation for Every Person party-enjoined from campaigning with the slogan "Vote REP" in Republican areas, where there was evidence such campaigning would deceive voters) with Rudisill v. Flynn, 619 F.2d 692 (7th Cir. 1980) (allegations that referendum was backed by people who misrepresented its cost, the need for the project, and their financial interest in it not sufficient to create federal cause of action arising out of interference with fundamental right to vote). 65. 376 U.S. 254 (1964). 66. Id. at 279-80; Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974); Garrison v. Louisiana, 379 U.S. 64, 75 (1964) ("IT]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social or political change is to be effected."); see also Vanasco v. Schwartz, 401 F. Supp. 87 (S.D.N.Y. 1975), aff'd, 423 U.S. 1041 (1976). A candidate for public office is a public figure for first amendment purposes. Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971). 1992] FORMAT RESTRICTIONS ON ADS that statements about a political candidate be unambiguously false before ordering reliefA7 This standard is practically impossible to meet. Although outright false statements are sometimes made in spots, it is far more common statements or leave impressions that are open for advertisements to make 68 to different interpretations, some true and others false. The result is that prohibiting false speech does not affect most advertisements. Even when it does, any relief usually comes long after the election, when the damage already has been done to the electoral process. 69 At this point, courts are reluctant to interfere in the electoral process by voiding an election 70 and may refuse to do so even where a material violation of the statute has occurred. 7' These problems might be partially remedied by giving courts the power to order candidates to retract false statements, even for negligent misrepresentations, because the chilling effect from retraction would be less than that from damages.7 2 However, the scope of even this expanded regulation probably would be narrow as long as only unambiguously false statements were prohibited.

2. Press Monitoring of Election Advertisements

It is also unlikely that increased monitoring of political advertising by the print press, as some have advocated, 73 can significantly improve the quality of political debate during elections. The press can improve the quality of campaigns somewhat by providing information to voters. After the 1988 campaign, for example, critics charged that the press failed to expose inaccuracies and deceptions in television advertisements.7 4 In response, the print media began monitoring advertising more closely and challenging advertisers to back up the statements made in them. 75 The increased monitoring made some advertisers more scrupulous about the content of their advertisements.7 6 As previously discussed, however, even a

67. Mosee v. Clark, 253 Or. 83, 85, 453 P.2d 176, 178 (1969); Neel, supra note 61, at 413-14. 68. See supra text accompanying notes 35-40; Daley, supra note 8. 69. See Winsbro, supra note 30, at 875-76. 70. Kennedy v. Voss, 304 N.W.2d 299, 300 (Minn. 1981); Mosee, 253 Or. at 88, 453 P.2d at 178; Neel, supra note 61, at 411. 71. See In re Ryan, 303 N.W.2d 462 (Minn. 1981). 72. L. TIME, AmERicAN CoNsTrruTIONAL LAw §§ 13-26 (2d ed. 1988). But see Developments in the Law-Elections, supra note 61, at 1283 (Retraction remedy would impermissibly chill campaign speech.). 73. See Shogan & Rosenthiel, supra note 8. 74. See, e.g., Jamieson, supra note 23. 75. Rosenberg, Newspapers Watch What People Watch in the Campaign, N.Y. Times, Nov. 4, 1990, at D3, col. 1; Rosenthiel, PolicingPolitical TV Ads, L.A. Times, Oct. 4, 1990, at Al, col. 1. The print media did this by publishing "truth boxes" that analyzed individual candidate commercials for accuracy. 76. Rosenthiel, supra note 75. INDIANA LAW JOURNAL [Vol. 67:663 meticulously accurate advertisement may not promote informed and rational discussion of campaign issues. To date, the press has not succeeded in making advertising campaigns more substantive. It seems unduly optimistic, if not naive, to think that the press will succeed where it has failed before. Furthermore, any reliance on the vigilance of the press assumes that voters are paying attention to it. The most detailed discussion of election issues is likely to be in newspapers, with less detailed information in the network news. Many viewers who view political advertisements on television do not generally read the newspaper or watch the network news. 77 Thus, even if the press successfully counteracts the distortions and evasions in a political advertisement, the information provided may not reach many of those who viewed the advertisement.

3. Voluntary Compliance with Election Codes

Proposals to increase voluntary compliance with fair campaign codes78 are also unlikely to improve the content of political advertisements. Present and past codes, including that of the American Association of Political Broadcasters, have prohibited many of the campaign practices that have drawn the most criticism, including making deceptive and misleading advertisements, appealing to racism and other prejudices, and exploiting or creating unfounded fears and doubts about a candidate. 79 The most significant enforcement scheme for such a code was that of the Fair Campaign Practices Committee (FCPC), a nonpartisan group formed in the 1950s in response to the demagogic attacks characteristic of the McCarthy era. The FCPC monitored election advertising, and when it determined that a candidate had violated the code, it pressured the candidate to withdraw or alter the advertisement in question. If the candidate refused, the FCPC threatened to publish its findings in the media. The FCPC ultimately proved ineffective because of lack of funding and lack of enforcement power.80 The experience of the FCPC illustrates the problems inherent in a voluntary compliance system. It is possible that a better funded and more

77. See Choi & Becker, Media Use, Issue/Image Discriminations and Voting, 14 Comm. REs. 267, 285 (1980) (Newspapers provide more informative coverage of campaigns than television news, but persons who rely on television for information do not generally read newspapers.); T. PAT=ERSON & R. McCLuRE, supra note 6, at 25 (Voters who were most influenced by political advertisements did not follow campaign in news media.). 78. Tucker & Heller, Putting Ethics Into Practice, CAMPAIGNS & ELEcTONS, Mar.-Apr. 1987, at 42; Hall, Note, When Political Campaigns Turn to Slime: Establishing a Virginia Fair Campaign Practices Committee, 7 J.L. & POL. 353 (1991). 79. Tucker & Heller, supra note 78, at 44-45; Hall, supra note 78, at 367 n.84. 80. M. PFAU & H. KENSKI, supra note 2, at 65; Tucker & Heller, supra note 78, at 44- 45; Hail, supra note 78, at 366-68. 1992] FORMAT RESTRICTIONS ON ADS effective voluntary compliance system could be established. However, the simple fact is that advertising uses the techniques it does because they work. It seems unlikely that candidates would voluntarily abandon such techniques as long as they are effective. In sum, there already exists a variety of mechanisms to police the content of political advertisements. Some of these schemes could be improved, and certainly none should be abandoned. It is unlikely, however, that regulation of false statements, increased press scrutiny of political advertising, or the promulgation of voluntary codes will, by themselves, make political advertisements significantly more informative or substantive.

E. Proposals to Regulate PoliticalAdvertisements

A number of more comprehensive proposals to regulate political advertising have emerged. One set of proposals aims to restrict the type of advertising that a candidate can air. For example, one proposal-known as the Clean Campaign Act-would require that the candidate appear in any negative advertisement attacking another candidate. 81 Some acknowledge that its purpose is to deter negative advertising, 82 while others emphasize that its only purpose is to make candidates accountable for the advertisements that they run.83 The theory is that candidates will be less likely to engage in unfair, misleading, or manipulative advertising if they must make the attack personally. A second proposal of this type would require that all advertising conform to a talking-heads format, in which the candidate addresses the camera without the benefit of additional images or other visual or aural enhancements.84 Other proposals add or substitute a requirement that the advertisement be of a minimum length.85 Studies have shown that the talking-heads advertisement is most often used to convey a candidate's position on a

81. S. 999, 101st Cong., Ist Sess., 135 CONG. Rac. 55384 (daily ed. May 16, 1989). If any legally qualified candidate for any Federal elective office (or an authorized committee of any such candidate) who utilizes rights of access and conditions of access under the provisions of this Act uses a broadcasting station to refer, directly or indirectly, to another legally qualified candidate for that office, such reference shall be made in person by such legally qualified candidate. Id. The Clean Campaign Act has been the subject of two legislative hearings. See 1989 Hearings, supra note 9; 1985 Hearings,supra note 57. 82. See 1989 Hearings, supra note 9, at 2 (statement of Senator Hollings); see also id. at 3-4 (statement of Senator Pressler) (supporting legislation and expressing concern about "level of negative campaigning"). 83. Id. at 3 (statement of Senator Danforth). 84. 1985 Hearings, supra note 57, at 30 (statement of Curtis Gans, Director, Committee for the Study of the American Electorate); Gans, How Those Negatives Developed, Wash. Post, Feb. 12, 1989, at C2, col. 1. 85. 1989 Hearings, supra note 9, at 54 (statement of Charles E. Guggenheim, President, Guggenheim Productions, Inc.) (Ads should be required to be two minutes or longer.). INDIANA LAW JOURNAL [Vol. 67:663 particular issue.16 The format was widely used in 1960.87 Now, however, "clear, issue-oriented" talking heads are rare."s Instead, when a candidate is featured addressing the camera, the advertisement usually carries other musical or visual enhancements so that the advertisement primarily conveys an image without addressing an issue.8 9 Proponents argue that a talking-heads restriction would generate more issue-oriented advertising because the format would prevent the candidate from making advertising that did anything else. 90 In addition, proponents note that such a proposal would eliminate the high-production advertising that seems most capable of distorting issues and appealing to fears, prejudices, and emotions.9 1 Finally, some suggest that because such advertising will be boring politicians will spend less money on advertisements and spend more on reaching the people directly. 92 A second set of proposals attempts to generate new information and types of advertising for voters but otherwise leaves the candidates free to use their campaign funds to run the kind of advertising that they desire. For example, some policy makers and experts advocate strengthened disclosure and identification requirements. For advertisements sponsored by independent groups, some have proposed disclosure requirements as rigorous as a continuous printed disclaimer stating that the advertisement is not authorized by a candidate and naming the group responsible for it.91 For advertisements

86. M. KERN, supra note 2, at 48-49; Shyles, The Relationship of Images, Issues and PresentationalMethods in Televised Spot Advertisements for 1980's American Presidential Primaries, 28 J. BRoADCASnTNG 405, 416 (1984); Shyles, The Televised Political Spot Adver- tisement, in NEw PERsPEcTIES, supra note 2, at 126; Devlin, supra note 3, at 26. 87. Devlin, supra note 3, at 25-26, 36-38. A Nixon talking-head advertisement pledged to improve civil rights and explained why it was necessary to do so. A Kennedy talking-head ad outlined and advocated a proposal to provide medicare for the elderly. 88. M. Knma, supra note 2, at 94. 89. Id. An example is a 1988 Bush advertisement that opens with Bush's granddaughter running toward him. Bush then looks into the camera and says: "I want a kinder and gentler nation. I hear the quiet people others don't: the ones who raise the families, pay the taxes." The camera cuts to Bush raising granddaughter. Then "Experienced Leadership For America's Future" is superimposed on the screen. Diamond & Matin, supra note 3, at 384. 90. 1989 Hearings, supra note 9, at 33-37 (statement of Curtis Gans, Director, Committee for the Study of the American Electorate); 1985 Hearings, supra note 57, at 30-31 (statement of Curtis Gans). 91. 1989 Hearings, supra note 9, at 33-37 (statement of Curtis Gans). 92. E. DIAMoND & S. BAThs, supra note 2, at 384. 93. S. 3, 102d Cong., 1st Sess., 137 CoNO. REc. 473, 477 (1991) (Television advertisements sponsored by independent groups must contain communications covering at least 25% of the screen running for the duration of the advertisement stating that the advertisement is not authorized by the candidate and naming the sponsoring organization.); H.R. 5400, 101st Cong., 2d Sess., 136 CoNG. Rac. 6877 (1990) (All advertisements sponsored by independent groups must contain a printed disclaimer running continuously during the advertisement of sufficient size to be readable stating "Paid for by _. Not authorized by any candidate."). 19921 FORMAT RESTRICTIONS ON ADS sponsored by candidates, a brief appearance by the candidate stating that she approved the advertisement would be required. 94 A second proposal of this type would provide candidates with free advertising, either through broadcast vouchers or free air time, but require that the advertisements be in a talking-heads format and be of a minimum length suitable to the development of issues.9 s The most ambitious of these proposals, advocated by political reporter Paul Taylor, would provide candidates with five minutes of free air time on alternating nights during the last four nights of the campaign. The candidate would have to appear personally throughout the duration of the spot.9 6 Other proposals have been more modest. Some propose free air time with the sole condition that the candidate run longer advertisements.Y Others propose free air time alone, without restrictions as to length or format.98 Advocates of subsidizing advertising argue that it would add new and better advertising to the political marketplace while relaxing the pressure on candidates to raise a large amount of money in order to conduct a campaign.Y Virtually every other major industrialized democracy bans paid political advertising but provides free air time to its political parties during elections.2° The different assumptions behind these two types of proposals should not be overlooked. The first set of proposals assumes that the talking-heads format is in every way superior to the short image-oriented advertisements

94. H.R. 5400, 101st Cong., 2d Sess., 136 CoNG. Rac. 6851 (1990) (Ads sponsored by candidates must contain identifiable image of candidate for at least four seconds and take up at least one-third of screen, with printed disclaimer stating that the candidate takes full responsibility for the ad.); S. 3, 102d Cong., 2d Sess., 136 CONG. REc. 477 (1991) (Ad sponsored by candidate must contain full screen appearance of candidate stating "I am a candidate for (office the candidate is seeking) and I have approved the contents of this broadcast."); S. 521, CAMPAIGN ADvERTiswaG AND DiscLosuaE ACT OF 1991, S. Rep. No. 59, 102d Cong., 1st Sess. (1991) (Ad sponsored by candidate must contain picture of candidate occupying at least 40% of screen and candidate must state "I, -, a candidate for -, have approved of this ad."). 95. P. TAYLOR, supra note 9, at 268; Talking Heads: Reforming Campaign Finance and Content, Naw REaPunuc, Aug. 20, 1990, at 7. 96. P. TAYLOR, supra note 9, at 268. 97. S. 3, 102d Cong., 1st Sess., 137 CONG. REc. 478 (1991) and S. 7, 102d Cong., 1st Sess., 137 CONG. Rac. 520 (1991) both provide for free advertising to candidates in blocks of one to five minutes. CENTER FOR RESPONSrVE PoLrnIcs, BEYOND THE 30-SEcoND SPOT: EN- HANCING THE MEDIA'S ROLE IN CONGRESSiONAL CAMPAiNS 65-68 (1988) (Candidates should receive free air time in five-minute blocks.). 98. L. SABATO, supra note 3, at 25-26. 99. 1989 Hearings, supra note 9, at 53-57 (statement of Charles E. Guggenheim, President, Guggenheim Productions, Inc.); 1985 Hearings,supra note 57, at 53-54 (statement of Charles E. Guggenheim); E. DIAMoND & S. BATES, supra note 2, at 387; L. SABATO, supra note 3, at 25; Matheson, Federal Legislation to Elevate and Enlighten Political Debate: A Letter and Report to the 102d Congress About ConstitutionalPolicy, 7 J.L. & POL. 73, 78 (1990). 100. L. SABATO, supra note 3, at 30-31; see also Paw, PoliticalBroadcasting Access in the United States and Great Britain, 10 Com. & LAW, Aug. 1988, at 33, 39-46 (describing British system). INDIANA LAW JOURNAL [Vol. 67:663 that now dominate the airwaves and that the latter should therefore be banned or strongly discouraged. By contrast, the second set of proposals does not necessarily assume that the issue-oriented talking-heads format is superior to image-oriented format. Rather, these proposals merely posit that certain kinds of information that is of value to voters-information about the source of an advertisement and substantive discussion of policy choices- is not being provided by paid advertising and that such information should be added to the political marketplace. This Article takes the position that only this second approach is constitutional.

II. THE CONSTITUTIONAL FRAMEWORK FOR REGULATING POLITICAL ADVERTISING

Proposals to alter the format of political advertising present the novel constitutional question of whether the government can regulate the form of political speech in order to make it more conducive to enlightened debate and the exchange of information and ideas.' °' Because of our strong commitment to free speech, any restriction on the content of expression is suspect. A close analysis of free speech principles, however, reveals a strong interest in regulating the form of political advertising to enable citizens to obtain the information they require to govern themselves. Therefore, a regulation cannot be dismissed as invalid simply because it abridges the individual right of a speaker to express herself in any manner that she chooses. Neither, however, should a regulation be upheld merely because it is asserted that it will advance free speech values. A close analysis reveals that format restrictions present a danger of unduly restricting the amount and communicative impact of speech. A proposed restriction must, therefore, be analyzed in light of the degree to which it presents recognized dangers to free expression. A regulation that minimizes such dangers and advances the government's strong interest in enhancing political debate should be held constitutional.

A. Supreme Court Precedent and PoliticalAdvertising

The relatively small body of case law on regulating campaign advertising sheds little light on the boundaries for permissible regulation of campaign advertising. In Brown v. Hartlage,'02 the Supreme Court reversed a Kentucky Court of Appeals decision that had voided an election because the winning

101. The extent to which the government may regulate the form of political advertising has only recently begun to be addressed by commentators. See Arbogast, Political Campaign Advertising and the First Amendment: A Structural-FunctionalAnalysis of Proposed Reform, 23 AKRON L. REv. 209 (1989); Matheson, supra note 99; Winsbro, supra note 30. 102. 456 U.S. 45 (1982). 19921 FORMAT RESTRICTIONS ON ADS candidate had promised during the campaign to reduce his salary if elected. The Court rejected three arguments brought before it. First, it was argued that the candidate's promise to reduce his salary was tantamount to offering a bribe to voters.103 The Court acknowledged that the state had a legitimate interest in protecting the integrity of its electoral process and could prohibit buying votes.'°4 The candidate's promise, however, merely expressed how he intended to exercise the powers of his office if elected. This was the kind of information that campaigning was meant to provide, the Court held, and the state had no interest in prohibiting it.10s The Court also rejected the argument that the interest in providing adequate salaries for public service, so that the rich and poor alike would have an incentive to run for elected office, justified a ban on discussing public salaries during campaigns.'06 Whether public salaries would be set high enough so that the less well-off would be able to afford to run, the Court said, was a decision to be made by the people. Protecting voters from making a bad choice by banning public discussion of an issue was "contrary to the fundamental premises underlying the First Amendment as the guardian of our democracy."' 07 Third, it was argued that because the salary that the candidate had promised to reduce was set by law the candidate's promise was false and subject to legitimate sanctions. 08 The Court held that voiding the election, with its consequent chill of political speech during elections, was an inap- propriate remedy in this case, regardless of whether the statement was false.'°9 There was no showing that the candidate had made the false statement knowingly or recklessly. 0 Furthermore, the candidate had publicly retracted his pledge a few days after making it and promised instead to work to change state law."' In Mills v. Alabama,12 the Court reversed the conviction of a newspaper editor who had been prosecuted for publishing an editorial on election day urging voters to support a council system. The editor was prosecuted under a statute that prohibited electioneering on the day of election." 3 The Court invalidated the statute, holding that it did not advance the asserted interests in preventing voters from being confused by last-minute charges. Instead,

103. Id. at 57. The state bribery statute had previously been interpreted to prohibit a candidate from promising to lower a salary that was fixed by law. Id.at 50. 104. Id. at 55. 105. Id. at 57-58. 106. Id.at 59-60. 107. Id. 108. Id. 109. Id.at 61-62. 110. Id.at 61. 111. Id.at 48-49. 112. 384 U.S. 214 (1966). 113. Id.at 216. INDIANA LAW JOURNAL [Vol. 67:663 the statute left people free to hurl charges up until the day before the election but then criminalized making an effective response. 14 In Schwartz v. Postel, 5 the Court summarily affirmed a three-judge court ruling that had invalidated key provisions of the New York Fair Campaign Code." 6 The district court held that the prohibition on false statements unconstitutionally chilled protected speech because it permitted the state elections board to restrain publication of campaign speech without clear and convincing proof that the false statements were made intentionally or with reckless disregard of their truth." 7 The statute also unconstitutionally prohibited attacks on a candidate based on race, sex, religion, or ethnic grounds. The court held that the state could not sweepingly prohibit the discussion of these factors that many in the electorate might find relevant."' Not surprisingly, these cases demonstrate that the government cannot prohibit the discussion of certain subjects or ideas. However, the holdings do not answer the more difficult question of how far the government can go in regulating the form of political advertising so as to improve the level and diversity of public debate. A more comprehensive analysis is therefore needed to determine whether a format restriction is consistent with free speech.

B. The Government's Interest in Informed Political Debate

1. The Relationship of the Government's Interest in Informed Debate to Free Expression

The government has a strong interest in ensuring that political debate during elections be informed, and this interest inheres in the very concept of free expression." 9 Free expression requires that debate on public affairs be "robust, uninhibited and wide-open"1 20 precisely so that the people can freely discuss governmental affairs and choose how they want to be gov-

114. Id. at 220. 115. 423 U.S. 1041 (1976). 116. Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975), aff'd, 423 U.S. 1041 (1976). 117. Id. at 100. 118. Id. at 94. 119. Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (per curiam) ("In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation."); see Gardner, Note, Protecting the Rationality of Electoral Outcomes: A Challenge to First Amendment Doctrine, 51 U. Cm. L. REV. 892 (1984) (First amendment doctrine should recognize the government interest in ensuring that elections reflect the true reasoned and informed choice of the people.); Matheson, supra note 99, at 87-90. 120. New York Times v. Sullivan, 376 U.S. 251, 270 (1963). 19921 FORMAT RESTRICTIONS ON ADS

2 erned. 1 An election is the one time when discussion is the most focused and when the opportunity for individual participation by the largest segment of the public is the greatest. Thus, when the Court declares that the first amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office,"' 2 it does little more than state a truism. The more interesting questions are what free expression requires and how it can best be achieved. One theory is that free speech is more concerned with fostering self- government than with protecting the autonomy of individual speakers. '2 Under this theory, free expression cannot be defined solely by reference to the freedom of individual speakers to express themselves. It also requires an inquiry into the nature of the resulting exchange of information and ideas that takes place.12 Clearly, the Court has not always followed this principle. In Buckley v. Valeo- 5 and First National Bank of Boston v. Bellotti126 for example, the Court struck down restrictions on campaign expenditures by individuals, groups, and corporations despite arguments that such restrictions were justified because they prevented wealthy individuals and groups from dominating public debate. 127 In other instances, however, the Court has tolerated infringements on autonomy because such infringements secure a better climate for free expression. 28 Thus, the principle has at least some vitality.

121. See Mills v. Alabama, 384 U.S. 214, 218-19 (1966) ("Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that amendment was to protect the free discussion of governmental affairs."); Roth v. United States, 354 U.S. 476, 484 (1956) (The first amendment was "fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."). 122. Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72 (1971); see also Brown, 456 U.S. at 53 ("The free exchange of ideas provides special vitality to the process traditionally at the heart of American constitutional democracy-the political campaign."). 123. Fiss, Free Speech and Social Structure, 71 IowA L. REv. 1405, 1409-10 (1986); Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup. CT. Rv. 191; Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. CT. REV. 245. 124. See A. ManaasoiN, PoLIcIAL FREEDOM 26-27 (1965); Fiss, supra note 123, at 1410 (Free speech permits the government to guarantee rich public debate, even at the expense of the autonomy of individual speakers.). 125. 424 U.S. 1 (1975). 126. 435 U.S. 765 (1978). 127. See Buckley, 424 U.S. at 19-23 (striking limits on campaign expenditures by candidates and independent groups); Bellotti, 435 U.S. at 788-92 (striking state restrictions on the use of corporate expenditures to influence the outcome of a public referendum). 128. See Austin v. Michigan Chamber of Commerce, 110 S.Ct. 1391 (1990) (upholding ban on corporate expenditures for campaign activities, except from a segregated fund, even though such a ban burdens the expressive rights of corporations); Buckley, 424 U.S. at 22 (upholding contribution limitations even though they restrict the manner in which citizens may exercise their rights of association); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding fairness doctrine and holding that rights of listeners to balanced presentation of issues outweighed interests of broadcasters in complete editorial control over programming). INDIANA LA W JOURNAL [Vol. 67:663

Proposals to regulate the format of political advertising can be justified by reference to the implicit corollary of this principle: namely, that when speech does not contribute to or when it detracts from self-government, it can be regulated. Because certain formats for political advertising are better at providing the information and the debate necessary for self-government, regulations to require or provide an incentive for the use Qf such formats are arguably consistent with free expression.

2. The Limited Interest in Autonomy

In the context of election advertising, the extent to which a format restriction impinges on the autonomy of an individual or a candidate to speak in the manner that she wants is irrelevant to assessing whether a restriction infringes on free speech. Whether the first amendment is seen as protecting primarily the right of society to govern itself' 29 or the right of individuals to self-realization, 30 achieving either will sometimes require access to information. To the extent that format restrictions enhance access to information for individuals and society to make important choices, it advances first amendment goals. Furthermore, whatever interests an individual has in self-expression take on a different quality when the individual is participating in a governmental process. A witness to a crime may be subpoenaed to testify against her will. "' A trial attorney may not state his personal opinion regarding matters at issue in the trial.3 2 An agency official may be compelled to release information pursuant to a Freedom of Information Act request. 3a All of these situations infringe on an individual's freedom to speak or not to speak. Yet, no one would argue that these restrictions are unconstitutional. The implicit assumption is that the individuals are primarily functionaries in a governmental system for obtaining information in an orderly manner. At times, their personal interests may be so implicated that it becomes more

129. See A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT (1948). 130. T. EMERSON, THE SYSTEM OF FREE EXPRESSION 6 (1970) (One of the interests served by the first amendment is individual self-fulfillment.); Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 593 (1982) (Free speech ultimately serves only one value, individual self- realization.). 131. See Branzburg v. Hayes, 408 U.S. 665, 682 (1972). 132. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.4(e) (1983) (An attorney may not "state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused."); see also MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-106(c)(3) (1980). The Court has recently indicated that the attorney's role as an officer of the court justifies less stringent first amendment protection from state regulation of public comment on a case than that afforded other individuals and the press. Gentile v. State Bar of Nev., 111 S. Ct. 2720 (1991). 133. See L. TRIBE, supra note 72, §§ 12-14. 1992] FORMAT RESTRICTIONS ON ADS important than their role in a governmental function. 3 4 Otherwise, the interest in preserving the viability of a governmental process justifies what would otherwise be undue restrictions on an individual's autonomy. Candidates and others who participate in an election have a right to express themselves, but they do not have a right to win or to have their views prevail. That is a choice that the electorate must make. Restrictions on the autonomy of candidates and participants may be necessary to ensure that the process is as efficient as possible.

3. The Free Marketplace of Ideas and Format Restrictions

The use of format restrictions to improve the level of public debate during elections is not inconsistent with the celebrated "marketplace-of-ideas" metaphor. 35 This metaphor is arguably the closest that the Court has come to embracing a coherent theory of the first amendment. 36 The application of the metaphor to elections is fairly straightforward. Essentially the hy- pothesis is that if people have unfettered access to the information and ideas put out by candidates they will be more likely to make the choice that is most consistent with how they want society to be. The problem is that most election campaigns are not, to borrow from Milton, a "free and open encounter" between competing ideas and programs. 3 7 Instead, candidates generally struggle to avoid revealing too many specifics of how they intend to govern. In doing this, they may distort the truth, appeal to prejudices and fears, and attempt to link themselves to vague consensually held values. The marketplace metaphor assumes that people will be able to use their rational capacities to eliminate these distortions and "find the core of relevant information or argument."' 38 This assumption is at best questionable, even on a theoretical level. Human psychology is such that irrational and irrelevant factors often influence a person's choice and actions, even if subconsciously. 3 9 Furthermore, studies Ity political scientists indicate that voters too often base their decisions on inadequate information or nonrational factors unrelated to a candidate's fitness for office.Y'°

134. Such a situation could occur when answering a question would subject a witness to criminal prosecution. 135. Cf. Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan, J., concurring); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 136. See Baker, Scope of the First Amendment Freedom of Speech, 25 U.C.L.A. L. REv. 964, 968 (1978). 137. J. MILTON, AREOPAGITICA 59 (1965) ("Let [truth] and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter?"). 138. Baker, supra note 136, at 976. 139. See id. 140. Gardner, supra note 119, at 892, 899-900. INDIANA LAW JOURNAL [Vol. 67:663

These problems indicate that a blind-faith belief that unregulated advertising will provide the information necessary for political voters is actually inconsistent with the ideal of a marketplace of ideas. On its own terms, the theory assumes a marketplace of ideas, not one of distortions and evasions. If format restrictions can help ensure that political debate becomes more of a free and open struggle between competing ideas, programs, and policies, they make elections more consistent with the marketplace of ideas model.

C. A Case Study-Union Certification Elections

One area where restrictions on the form of speech are enforced in order to ensure a fairer election is in union certification elections to choose a collective bargaining representative. Under the doctrine first articulated in Sewell Mfg., 141 the National Labor Relations Board (NLRB) will void an election if either the union or management uses campaign propaganda "which can have no purpose except to inflame the racial feelings of voters in the election."' 142 Once it is shown that the statement was made, the burden shifts to the party who employed the propaganda to show that the statement was truthful, germane, and within "reasoned bounds."'1 43 The Board and the courts have applied this standard to void or further investigate elections in a variety of circumstances, including appeals to biases against African-Americans' 44 and Japanese, 14s religious hatred, 1' and inflammatory statements with no explicit racial or religious bias. 47

141. 138 N.L.R.B. 66 (1962). 142. Id. at 71. This doctrine has generated a considerable degree of academic commentary. See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 HARv. L. REv. 38 (1964); Pollitt, The National Labor Relations Board and Racial Hate Propaganda in Union Organization Drives, 17 STAN. L. REv. 373 (1965); Motley, Note, Labor Representation Elections and the ConstitutionalRight to Campaign Vigorously, 23 S.C.L. REv. 400 (1971); Note, Employee Choice and Some Problems of Race and Remedies in Representation Campaigns, 72 YALE L.J. 1243 (1963); Note, Restrictions on the Employer's Right of Free Speech During Organizing Campaignsand Collective Bargaining, 63 Nw. U.L. REv. 40 (1968). 143. Sewell, 138 N.L.R.B. at 72. 144. Id. (Management linked a union to integrationist efforts and distributed picture showing a white union official dancing with African-American woman.). 145. YKK (USA) Inc., 269 N.L.R.B. 82, 84 (1984) (Union employees wore shirts and work rags printed with the phrases "Remember Pearl Harbor," "Japs Go Home," "Japs Speak With Forked Tongue," and "Slant Eyes."). 146. NLRB v. Katz, 701 F.2d 703, 705 (7th Cir. 1983) (Pro-union protest addressed workers with phrases such as "Nazis marched in Skokie to keep the Blacks out."); NLRB v. Silverman's Men's Wear, Inc., 656 F.2d 53, 57 (3d Cir. 1981) (Union official referred to company executive as a "stingy Jew."). 147. Schneider Mills, Inc. v. NLRB, 390 F.2d 375, 377, 379-80 (4th Cir. 1968) (A union compared a company president to Hitler.). 1992] FORMAT RESTRICTIONS ON ADS

In applying this standard, the Board first examines whether the statement is relevant to an issue germane to the election." 48 Statements with racial overtones are tolerated as long as they are true and "pertain to a subject concerning which employees are entitled to have knowledge."'' 49 These include information relating to the racial policies of the union,15 0 appeals to economic self-interest,151 and appeals to racial solidarity among traditionally oppressed minority groups.1 52 Even if a statement is relevant, however, the Board may void an election if an idea was expressed in a gratuitously inflammatory manner. Thus, in Katz the Court noted that while "the priest's comment regarding the wealth of Jewish people, as juxtaposed to the poverty of the employees, might be relevant to the campaign, the point could have been made without ... a racial slur."' 53 Similarly, in condemning a union leader's reference to an executive as a "stingy Jew" in Silverman's, the Third Circuit commented: "If the Union leader had desired to stress the executive's parsimony, he Silverman' or the 'stingy vice-president.' could have referred to 'stingy 5 4 Instead, he allegedly resorted to a disreputable stratagem of bigots.' Indeed in Sewell and Allen-Morrison 5 decided on the same day, the contrasting forms used to convey the same essential image led to different outcomes. In both cases, management had urged the defeat of the union by linking it to integrationist policies and activists. Moreover, in both cases, the Board acknowledged a potential that the strategy would appeal to racist and prosegregation sentiments among the largely white work force. 5 6 Yet in Allen- Morrison, management's primary mode of expression was a "5 "2 page single-spaced letter."'17 By contrast, in Sewell, it was the distribution of photographs of black and white men and women dancing together. 5 Ana- lyzing the two communications, the court concluded that the former had a

148. See, e.g., id. and YKK, 269 N.L.R.B. at 84 (both noting the irrelevancy of the inflammatory statements). 149. Sewell, 138 N.L.R.B. at 71. 150. Allen-Morrison Sign Co., 138 N.L.R.B. 73 (1962) (finding appropriate "temperate" letter from management of southern company with white work force which told employees that the national union pressured its local offices to back segregation efforts). 151. NLRB v. Baltimore Luggage Co., 387 F.2d 744, 747 (4th Cir. 1967) (finding proper statement that union would help better conditions of blacks and had traditionally been friend of blacks); Archer Laundry, 150 N.L.R.B. 1427 (1965) (certifying election where union had equated support for unions with support for Martin Luther King Jr. and civil rights). 152. NLRB v. Sumter Plywood, 535 F.2d 917, 929 (5th Cir. 1976), cert. denied, 429 U.S. 1092 (1977). 153. 701 F.2d at 706. 154. 656 F.2d at 58 n.7. 155. 138 N.L.R.B. 73 (1962). 156. Sewell, 138 N.L.R.B. at 71 (The Board referred to the statements approved in Allen- Morrison and noted that "[w]e would be less than realistic if we did not recognize that such statements, even when moderate and truthful, do in fact cater to racial prejudice."). 157. Allen-Morrison, 138 N.L.R.B. at 73. 158. Sewell, 138 N.L.R.B. at 67. INDIANA LAW JOURNAL [Vol. 67:663

legitimate purpose of informing workers of the union's racial policies, while the latter served mainly to inflame and exacerbate racial feelings. 5 9 Prohibiting inflammatory appeals, therefore, does not extend to any implicit appeal to racism, emotion, or other allegedly irrelevant factors. Rather, the prohibition is on communications that primarily inflame and arouse rather than educate and inform. 6° The Board's purpose is to provide "elections in which the employees have the opportunity to cast their ballots for or against a labor organization in an atmosphere conducive to the sober and informed exercise of the franchise.''6 To the extent possible, the Board seeks to promote rational debate in union elections. The goal that motivates the Board's policy is democracy: to ensure that the outcome of the election reflects the true wishes of its employees. 62 In choosing to pursue this goal by voiding elections where certain speech has been uttered, the Board implicitly assumes that not all speech is beneficial. Rather, it assumes that sometimes free speech can "prevent or impede a reasoned choice. 163 This is in marked contrast to the reigning assumption in the unregulated marketplace of political advertising that "robust, uninhibited debate" is best achieved without restriction on speech. Commentators have argued that the Sewell standard violates the first amendment.' 6 ' However, virtually every circuit has adopted Sewell.'16 To date no court has even considered the possibility that it might violate free speech, except to note that a similar regulation could not constitutionally be applied to candidates campaigning for political office.'" Two justifica- tions for the standard have been suggested. First, the standard derives from the Board's power to regulate the conduct of union elections to ensure that they reflect the true choices of employees. Thus, the Board's actions have the primary purpose of furthering the first amendment free association

159. Allen-Morrison, 138 N.L.R.B. at 75; Sewell, 138 N.L.R.B. at 71. 160. Pollitt, supra note 142, at 401 (Sewell distinguishes between "speech intended to inflame and speech intended to inform."). 161. Sewell, 138 N.L.R.B. at 70. 162. Id. at 69-70 (The Board seeks "'to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of its employees."') (quoting General Shoe Corp., 77 N.L.R.B. 124, 127 (1948)). 163. Id. at 70; see also Katz, 701 F.2d at 707 ("The relevant legal inquiry is whether the inflammatory remarks could have impaired the employees' freedom of choice in the subsequent election."). 164. Bok, supra note 142, at 68-71; Pollitt, supra note 142, at 401-08. But see Motley, supra note 142 (arguing standard is constitutional). 165. NLRB v. Utell Int'l, 750 F.2d 177, 179 (2d Cir. 1984); Arlington Hotel v. NLRB, 712 F.2d 333, 338 (8th Cir. 1983); Silverman's, 656 F.2d at 58; Peerless of America v. NLRB, 576 F.2d 119 (7th Cir. 1978); Sumter Plywood, 535 F.2d at 929; Baltimore Luggage, 387 F.2d at 746. 166. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 778 n.3 (1976) (Stewart, J., concurring). 1992] FORMAT RESTRICTIONS ON ADS rights of employees to choose to belong or refrain from belonging to a 67 union, a purpose unrelated to the suppression of speech. Second, it has been suggested that the domination and superior bargaining power of the employer justifies greater restrictions on their speech. 68 The Court has upheld restrictions on the degree to which an employer can claim that the election of a union will cause economic troubles to the company, for example, on the ground that because of the employer's dominant position, such statements are likely to be interpreted as a threat. 169 This rationale is not obviously applicable to inflammatory statements because such statements are not necessarily threatening. 70 Theoretically, both the strong and the weak economically can inflame others to gain their support. However, if management does dominate and has an inherent advantage, restrictions on inflammatory statements might be advisable to prevent management from exploiting that advantage by distracting the employees from the issues that are most germane to the election. The Labor Relations Board's regulation of inflammatory propaganda in certification elections reveals startlingly different assumptions about speech and political debate than those generally associated with first amendment jurisprudence. The experience indicates that speech, even political speech, is sometimes regarded as dangerous and destructive of free speech and free choice and that we can and do distinguish between rational debate and less- valued emotional appeals.

D. The Case for Format Restrictions on PoliticalAdvertising

When one considers the nature of current political advertising, the case for requiring or encouraging the use of formats that are more likely to produce informative debate about prospective policy choices facing the country is even more compelling than it is for the restrictions in union certification elections. There are three reasons why this is so. First, speech in the context of political elections cannot be considered in a vacuum. While there may be important first amendment self-realization interests in allowing people to speak in the manner that they choose, these interests are less important in an election where the first amendment and democratic interests of the whole society to make an informed choice of its leaders are at stake. Speech in an election not only expresses the individual views of the speaker, it also affects the nature of the election process. In labor certification elections, for example, it is thought that an inflammatory statement can deprive employees of the sober environment that they require

167. Pollitt, supra note 142, at 379-80. 168. See Motley, supra note 142, at 435. 169. NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). 170. See Bok, supra note 142, at 69. INDIANA LAW JOURNAL [Vol. 67:663 in order to make a reasoned choice about the prospective union. Because the unfettered exercise of the union's and employer's free speech could potentially intrude upon the associational rights of the employees to choose or decline a union, a restriction on individual speech rights is tolerated. Similarly, restrictions on avenues of individual expression in election campaigns are defensible if they have the effect of enhancing the first amendment interests of the society in self-governance and the receipt of adequate information to make an informed choice in the election. Second, the concern that the dominance of monied interests may adversely affect the nature of political debate justifies greater efforts by the government to make political debate during election campaigns as substantive as possible. It is frequently noted that debate during elections often ignores those issues that are most central to the future of the nation. One explanation for this phenomenon is that because dominant economic interests shape politics the most crucial issues of economic and social structure are intentionally pushed to the margin of politics so that they are not subject to public scrutiny and democratic decisions. 171 Encouraging or requiring the use of formats that are more likely to require discussion of substantive issues makes it more difficult-although certainly not impossible-for politicians to obscure the important issues by using the various tactics discussed previously. Third, format restrictions on the manner in which a speaker imparts a political message do not tend to endanger core first amendment expression rights. Format restrictions can be termed "content-based" if they are motivated by the communicative impact of the speech in question. 72 Pro- posed format restrictions aim to prohibit or discourage certain formats and to require or encourage the use of other formats. These formats are based on the degree to which the content of the speech most likely to be produced in a certain format is thought conducive to informed and reasoned political discussion. However, they are not traditional content regulations because they do not discriminate between speech based on its viewpoint, its subject 1 7 matter, or even the precise words used. 1 In fact, the proposed format restrictions do not prevent the speaker from saying anything or expressing any idea at all.

E. Dangers Posed by Format Restrictions

Nevertheless, a restriction on form poses potential dangers to free speech. These dangers are of two types. First, there is the danger that a format

171. Fiss, supra note 123, at 1406 (discussing C. LINDBLOM, PoLmcs AND MAR=S: THE WoR.LD's PoLmcAL-EcONOIEC SYsTEms (1977)). 172. L. TYaBE, supra note 72, § 12-2. 173. See Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."); L. TRmE, supra note 72, § 12-3. 1992] FORMAT RESTRICTIONS ON ADS restriction will inhibit the expression of disfavored ideas, either because it is enforced in a biased manner or because a bias is built into the format restriction. Second, there is the danger that a format restriction will impov- erish public debate, even as it succeeds in creating more rational advertisements. This impoverishment can occur if the format restriction hampers the communicative impact of advertising or if it significantly diminishes the overall quantity of political speech.

1. Suppressing Disfavored Ideas

The first concern is that restricting formats will make it easier for the government to suppress ideas. The Court in Cohen v. California'74 expressed this concern when it faced the question of whether the state could constitutionally punish an individual for wearing a jacket with the words "fuck the draft" into a courthouse.1 7 5 The question for the Court was primarily one of the limits on regulation of form. 17 6 Under the state's theory, Cohen was free to express the abstract idea that he opposed the draft. He was simply prohibited from expressing it in a manner that "maliciously and willfully" disturbed the peace or involved "offensive conduct.' ' 7 7 Never- theless, the Court reversed the conviction, reasoning, in part, that if it allowed this kind of regulation "governments might soon seize upon the censorship of particular words as a convenient guise for banning the 7 8 expression of unpopular views.' This is undoubtedly a serious concern, particularly regarding the regulation of election advertising. Because the same government that would enforce any restriction also would have an interest in remaining in power, there should be concern that the government would intentionally enact restrictions that would tend to "further government policies or favor established political elites.' 79 However, this concern does not justify a prohibition on any governmental interference with political advertising. Americans already tol- erate a significant degree of governmental intrusion into the speech

174. 403 U.S. 15 (1971). 175. Id. at 16. Cohen is thoughtfully discussed in Farber, Civilizing Public Discourse: An Essay on ProfessorBickel, JusticeHarlan and the Enduring Significance of Cohen v. California, 1980 DuKE L.J. 283. 176. See Farber, supra note 175, at 284 (Cohen was primarily concerned with whether the state could "purify" public discourse in the interest of creating a more tolerable climate for thought and discussion rather than with the captive audience problem.). 177. Cohen, 403 U.S. at 16. 178. Id. at 26. 179. Baker, Realizing Self-Realization: Corporate PoliticalExpenditures and Redish's The Value of Free Speech, 130 U. PA. L. REv. 646, 651 (1982); see also L. TamE, supra note 72, at 1129 ("The fear that a prevailing government might some day wield its power over political campaigns so as to perpetuate its rule generates a commendable reluctance to invest government with broad control over the conduct of political campaigns."). INDIANA LAW JOURNAL [Vol. 67:663 marketplace from time, place, and manner regulations80 to actions by the police to protect dissenters and facilitate free speech' to subsidies for the arts and other expression.8 2 Were one to take seriously the notion that any governmental involvement in speech will necessarily be abused by the state to serve its own ends, all of these long-established intrusions would have to end. Instead, one learns to recognize the state "not only as an enemy, but also as a friend of speech; like any social actor, it has the potential to act in both capacities," and one can and must "discriminate between them."' A government regulation is most dangerous when it creates the potential for repeated governmental application of open-ended standards, with the resulting possibility that biases against certain ideas will adversely affect the government's enforcement of that regulation. In Cohen, for example, the challenged statute prohibited "offensive" conduct and "maliciously and willfully" disturbing the peace.' 84 There was, therefore, a danger that the police and the courts would enforce this vague prohibition in a way that punished the expression of disfavored views. 5 The Court has repeatedly emphasized this potential for arbitrary and discriminatory enforcement in striking laws on overbreadth and vagueness grounds.8 6 The same concern also underlies the doctrine that a law requiring a permit to parade or picket or a license to engage in expressive activity is generally void on its face if it vests complete discretion in a state official to grant or deny a permit or license.8 7 The danger of arbitrary and discriminatory enforcement of format restrictions would appear to be strongest in the context of administrative adjudication, because the decisions of administrative agencies might be heavily influenced by political considerations and pressure from the government.' Even purely judicial involvement can be dangerous, however, because in every case in which a judge would

180. E.g., Adderley v. Florida, 385 U.S. 39 (1966). 181. E.g., Collin v. Smith, 578 F.2d 1197 (1978). 182. See Bella Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991). 183. Fiss, supra note 123, at 1416. 184. Cohen, 403 U.S. at 16. 185. There is a good chance that this actually occurred in Cohen's case. Farber, supra note 175, at 287 ("The trial judge imposed a sentence of thirty days in jail. This harsh sentence, for what was at most a juvenile prank, is hard to understand except as the consequence of either a puritanical attitude toward Cohen's language or, worse, strong hostility to Cohen's political views."). 186. See, e.g., City of Houston v. Hill, 482 U.S. 451, 466 (1987); Smith v. Goguen, 415 U.S. 566, 575 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). 187. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969); Lovell v. Griffin, 303 U.S. 444, 452-53 (1938). 188. Vanasco, 401 F. Supp. at 99-100 (stating as a reason for striking the New York election codes as unconstitutional the fact that the code allowed for administrative enforcement without review). 1992] FORMAT RESTRICTIONS ON ADS have the power to approve, disapprove, or otherwise regulate a political advertisement, there would be the potential that the judge's unconscious biases against unconventional or unpopular ideas would adversely affect the judge's decisions.8 9 A related problem with elections is that repeated adjudications of any sort-even if evenhanded-might disrupt the electoral process and diminish public confidence in it. This concern reveals why any scheme for a more extensive case-by-case policing of election advertisements would probably violate the first amendment. Such schemes would include proscribing advertisements that tend to mislead but are not intentionally false, 190 as well as schemes to prohibit advertisements that are unnecessarily inflammatory. The NLRB's experience in union certification elections demonstrates that any case-by-case review of election advertisements would probably spawn a complicated jurisprudence and questionable distinctions and possibly void a significant number of election results. At the very least, such a scheme would significantly disrupt the political process. More likely, it would also deter campaign speech as candidates struggled to avoid coming within the prescriptions of the regulatory regime. A format restriction will not raise these problems if it employs clear standards that can be understood and followed without the need for substantial adjudication and interpretation. Examples in other contexts include the clear and uniform restrictions that cities and towns have placed on speech in certain places and during certain times.19' A second concern, also raised by the Cohen Court, is that any format restriction would necessarily affect the communication of ideas and information because one cannot regulate the form of speech without also regulating its content. 92 This is particularly true with respect to a regulation of form that is designed to favor rational debate over emotional appeals: Much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotion as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as

189. See L. BOLLINGER, Tx TOLERANr SociETY 78 (1986). 190. See Hinerfeld, supra note 8. 191. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding rule prohibiting posting of campaign signs on public property); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (Blackmun, J., plurality opinion) (upholding ordinance prohibiting posting of political advertisements on city busses). 192. Cohen, 403 U.S. at 26. ("[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process."). INDIANA LAW JOURNAL [Vol. 67:663

Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures-and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." 9, This too is a serious concern. However, the greatest danger is that the restriction on form, while neutral on its face, would tend to restrict speech most critical of the status quo. Thus, the Court has wisely restricted the authority of the states to prohibit offensive speech, 194 fighting words, 95 or incitements to imminent lawless action, 96 because such prohibitions are most likely to diminish the effectiveness of speech that is most derisive and critical of the existing order. Therefore, this concern should not be elevated to a rejection of any kind of restriction on the format of political advertising. Instead, any proposed restriction on political advertising must be closely scrutinized to ensure that it is neutral, that is, that it does not have the primary purpose or effect of inhibiting speech that is critical of government officials or conduct.' 97

2. Impoverishing Public Debate

Two additional problems present the danger that a format restriction might actually curtail the communication of information and ideas necessary to election campaigns. The first problem is that a restriction on the form of speech might impede its ability to communicate effectively to listeners. In Zauderer v. Office of Disciplinary Counsel,98 the Court struck down an Ohio disciplinary rule that prohibited attorneys from advertising with pictures, noting that "[t]he use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertising's message, and it may also serve to impart information directly."' 99 The attorney in Zauderer had placed an advertisement in newspapers showing a picture of the Dalkon Shield Intrauterine

193. Id. (quoting Baumgartner v. United States, 322 U.S. 665, 673-74 (1944)). 194. Cohen, 403 U.S. 15. 195. The fighting words doctrine was first articulated in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) and continues to be cited by the Court. E.g., Texas v. Johnson, 491 U.S. 397 (1989) (citing but not applying doctrine). However, in practice the Court has so narrowly construed the doctrine that many commentators consider the fighting words exception to be moribund. E.g., Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974) (striking as overbroad a statute that went beyond precise limits of the Chaplinsky Court's definition of fighting words); Gooding v. Wilson, 405 U.S. 518, 523 (1972) (restricting fighting words doctrine to face-to-face confrontations). 196. E.g., Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). 197. See Blasi, The Checking Value in FirstAmendment Theory, 1977 AM. B. FOUND. Ras. J. 521 (Speech critical of the government and directed to checking government abuse should receive strongest constitutional protection.). 198. 471 U.S. 626 (1985). 199. Id. at 647. 1992] FORMAT RESTRICTIONS ON ADS

Device. Underneath was the caption "Did You Use This IUD?" followed by information relating to the kind of injuries associated with the Dalkon 2 Shield and the name, address, and phone number of the law firm. 00 The advertisement had been highly successful, generating numerous inquiries and eventual lawsuits on behalf of 106 women. 20' The Ohio rule did not necessarily prevent the attorney from communicating any of the information contained in the advertisement. However, the Court was apparently concerned that the state's restriction on the use of pictures might prevent attorneys from communicating this information effectively to prospective clients. This concern recognized that one of the interests served by the first amendment is the interest in the public having appropriate information and ideas necessary to make choices for themselves. 202 Any restriction on formats of political advertising, therefore, must be closely scrutinized to ensure that it does not unduly restrict the communicative impact of the speech. A final concern is that a format restriction would reduce the overall quantity of speech. In Buckley, for example, the Court struck down expenditure limits in federal election campaigns noting that they "necessarily reduced the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached." 203 Theoretically, the quality of speech is more important to first amendment values than sheer quantity. However, distinguishing between "good" and "bad" political advertising is not always possible, and at- tempting to do so is likely to chill valuable political dialogue. Therefore, it seems correct to assume that, all other things being equal, more speech generally leads to better discussion of the issues and more access to information. Even misleading or irrelevant information in a campaign may prompt criticism of such speech and lead to a more productive discussion of issues relevant to the campaign. Given the recurrent criticism that contemporary culture is often preoccupied with entertainment, sports, or materialism rather than with probing questions of public policy and government, it hardly makes sense to risk curtailing the present quantity of political discussion. Therefore, any format restriction must be analyzed in light of the degree to which it would tend to reduce the quantity of political advertising and of overall information to the voter. III. THE CONSTITUTIONALITY OF PROPOSED FORMAT RESTRICTIONS ON POLITICAL ADVERTISING Applying the previously discussed criteria to the proposed restrictions yields a limited but adequate opportunity for the government to elevate

200. Id. at 630-31. 201. Id. at 631. 202. See Board of Educ. v. Pico, 457 U.S. 853 (1982); Virginia State Bd. of Pharmacy, 425 U.S. 748. 203. Buckley, 424 U.S. at 19. INDIANA LAW JOURNAL [Vol. 67:663 political debate through format restrictions. Proposals that mandate format restrictions for all advertisements-the personal appearance and the talking- heads requirements-are unconstitutional because they would suppress a significant amount of speech that can be quite effective at communicating ideas and information to voters. Narrowly tailored disclosure requirements are probably constitutional. However, they probably would not improve significantly the level of public debate. Most promising are proposals to provide candidates with free advertising, subject to format restrictions likely to encourage candidates to make issue-oriented advertisements. These proposals would add a particular kind of advertising to the political marketplace without curtailing other modes of expression favored by candidates.

A. Personal Presentation of Negative Advertising

Requiring a candidate to personally present negative campaign advertisements is inconsistent with freedom of expression and illustrates the potential 2 4 dangers of permitting format restrictions by an incumbent government. 0 Its most obvious flaw is that it is not neutral with respect to the viewpoint of the advertisement. It singles out speech that is critical of a candidate and subjects it to greater restrictions than speech that endorses a candidate. Candidates who engage in such "positive" advertising are free to use whatever media enhancements and third-party spokespersons that they desire, while a negative attack must be made "in person." The effect of this proposal would be to eliminate the most widely used and most effective negative advertisements because placing the candidate in the advertisement would often blunt the ads' effectiveness or risk backfiring on the sponsoring candidate. 20 5 Most negative advertising operates by associating the opponent with something perceived to be bad in order to 2 create fear, uncertainty, and anxiety about that candidate. 01 Generally the technique used is to impose the picture of the favored candidate only at the end of the advertisement, so that the candidate emerges as the resolution 2 7 to the fear, uncertainty, or anxiety that is associated with the opponent. 0 If the candidate appears visually in a negative advertisement, she risks being 2 8 associated with the problem rather than emerging as its solution.

204. Most commentators who have examined the personal presentation requirement have concluded that it is unconstitutional. E.g., Matheson, supra note 99, at 127-29, 132. 205. See M. KERN, supra note 2, at 78. 206. Id. at 102-107. This is particularly the case with what Kern calls "hard sell" negative emotional advertising, which employs threatening music, dark colors, and harsh sound effects to create a particularly intense feeling of dread. Id. 207. Id. at 33. This technique borrows from the "get 'em sick, then get 'em well" theory of commercial advertising, in which a product is presented as the solution to a problem which the consumer is shown to have. Id. at 30. 208. Id. at 79. 19921 FORMAT RESTRICTIONS ON ADS

The proposal also would necessarily prevent or greatly impede the use of a number of popular techniques used in negative advertising. These include the use of the candidate's family, the use of an actor or other celebrity, or the use of constituents from the opponent's district to criticize her record.2°9 Also impeded would be the use of visual images that may be highly relevant to a pressing issue, such as a war210 or the need for environmental controls. 21' Significantly, the proposal would impede or eliminate "neutral reporter" advertisements, which employ visuals and an offscreen announcer to compare the opponent's record or positions with those of the favored candidate. 212 Such advertisements, while less frequent now than in the past, can provide valuable information to the voter in a rational manner.213 Finally, research has shown that the techniques used in current negative political advertising can be quite effective in communicating information to voters and interesting them in the political process. Voters tend to remember negative advertisements longer than positive ones precisely because the negative advertisements are hard hitting, entertaining, and stylistically interesting. 214 Thus, the effect of a personal presentation of negative campaigning requirement would be to render less effective advertising that is critical of a candidate. There is no legitimate government interest in suppressing or inhibiting negative advertising. The increasing prevalence of negative advertising 25 has prompted considerable criticism from the popular press and from candidates. 216 From the standpoint of providing information to voters, however, this criticism is probably unjustified. Although negative advertising can be criticized for all the reasons outlined in Part I, there is no indication that negative advertising per se is less informative or provides a less-meaningful discussion of issues than positive advertising. Indeed, because negative advertising often focuses on specific positions or actions of an opponent,

209. 1989 Hearings, supra note 9, at 62 (statement of Barry Lynn, Legislative Counsel, American Civil Liberties Union). 210. E.g., M. PFAu & H. KENsKI, supra note 2, at 7 (an Eisenhower ad). 211. Dwinell, Talking Heads Ignores Body and Soul, CAMPAIGNS & ELECTIONS Jan.-Feb. 1989 (arguing that candidates should be able to demonstrate their stand on environmental issues with images of nature, such as a beach). 212. M. KERN, supra note 2, at 49; Jamieson, supra note 21, at 18-19. 213. Jamieson, supra note 21, at 18-19 ("[N]eutral reporter ads ... are rational political ads that offer factual data, invite or stipulate a conclusion, and warrant that conclusion."). 214. M. PFAU & H. KENsKI, supra note 2, at 2-4. 215. Id. at 13-59 (noting a significant growth in negative advertising); M. You2o, THE AMRIcAN DICTIONARY OF CAMPAIGNS AND ELECTIONS 60-61 (1987) (One out of two candidate advertisements is negative, up from one out of five in 1962, and 80% of advertisements sponsored by independent groups are negative.); Guskind & Hagstrom, In the Gutter, NAT'L J., Nov. 5, 1988, at 2782 (noting increase in negative advertising on state level). 216. Much Ado About Ads Knocking Candidates, BROADCASTING, Sept. 16, 1985, at 64. INDIANA LAW JOURNAL [Vol. 67:663

negative advertisements may well be more informative than positive adver- 17 tisements. 2 Particularly troubling is the fact that negative advertising has traditionally been employed more by challengers than by incumbents. 218 This is because the incumbent can often afford to rest on name identification, while the challenger can best attract attention initially by tarnishing the incumbent's image. Thus, a personal presentation requirement might operate to make it more difficult for challengers to win and to dampen enthusiasm for incumbents.2'9 This is intolerable, since first amendment protections are most necessary for speech that is critical of the status quo and that advocates change. 20 Negative advertising can force a candidate to face certain issues or defend aspects of her record that she would rather avoid. Negative advertising can thus help keep an incumbent accountable for the positions that she has taken and her acts in office. For these reasons, any proposal that would curtail the effectiveness of negative advertising, as would the personal presentation requirement, should be held unconstitutional. B. Talking Heads A requirement that all advertisements have a talking-heads format is more evenhanded than the personal presentation requirement but is still constitutionally troubling. The case most pertinent to this proposal is Zauderer.2

217. Garramone, Atrim, Pinkleton & Cole, Effects of Negative PoliticalAdvertising on the Political Process, 34 J. OF BROADCAST AND ELECTONIC MEDIA 299, 300-01 (1990); Joslyn, supra note 10, at 160. 218. M. PFAU & H. KENsKI, supra note 2, at 13-60. This trend may be changing. Guskind & Hagstrom, supra note 215 (noting incumbents are beginning to use negative advertising more at the outset of a campaign). 219. This has led some to charges that the Clean Campaign Act is intended to protect incumbents from challengers and increase their chances of remaining in office. 1985 Hearings, supra note 57, at 80, 101, 121 (statements of Terry Dolan, Chairman, National Conservative Political Action Committee, and Robert Heckman, Chairman, Fund for a Conservative Majority). 220. See New York Times v. Sullivan, 376 U.S. 254, 270 (1964) ("Debate on public issues ... may well involve vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."); Blasi, supra note 197. 221. 471 U.S. 626. Zauderer is part of a line of cases establishing fairly strong first amendment protection for commercial speech but allowing the state to regulate speech that is inherently misleading or that has been used to mislead or deceive consumers. See Peel v. Attorney Registration and Disciplinary Comm., 110 S. Ct. 2281, 2287 (1990); In re R.M.J., 455 U.S. 191 (1982); Bates v. State Bar of Ariz., 433 U.S. 350 (1977); Virginia Citizens Consumer Council v. Virginia Bd. of Pharmacy, 425 U.S. 748 (1976); see also Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 566 (1980) (State may not regulate truthful advertising concerning lawful activity unless regulation directly advances a substantial governmental interest and is no more extensive than necessary to serve that interest.). Com- mercial speech has been defined narrowly to include only speech that does no more than propose a commercial transaction. See Bigelow v. Virginia, 421 U.S. 809, 818-21 (1975). Political advertising, therefore, cannot be considered commercial speech, but the analogy is still helpful because if a format restriction would not survive scrutiny under commercial speech doctrine, it would also be unconstitutional under the more rigorous protection accorded political speech. 19921 FORMAT RESTRICTIONS ON ADS

In Zauderer, the state sought to prohibit the use of pictures in advertising because the use of visual images "creates unacceptable risks that the public will be misled, manipulated, or confused."mn The state argued that it would be impossible to police deceptive visual advertising on a case-by-case basis because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argue[d], it [would] be difficult for the State to point to a particular illustration and prove that it is misleading or manipulative.m The state, therefore, argued that a prophylactic bar of visual advertising was justified.22 The Court rejected this argument, noting the advertisement in question was not deceptive and the state had presented no evidence that it could not continue to regulate visual advertising on a case-by-case basis for deception, as it already did for other attorney advertisements and as the Federal Trade Commission (FTC) did for visual advertisements.22 In an earlier case, however, the Court had suggested that the "special problems of advertising on the electronic broadcast media, will warrant special consideration. 22 6 Expanding on this suggested distinction, three states have restricted the use of visual images in advertising by attorneys on television, requiring instead a format thought more conducive to conveying information? 27 The courts have upheld such restrictions, reasoning that the unrestricted use of television would probably produce advertisements more likely to appeal to a person's emotions or fears than provide the information necessary to make an intelligent choice regarding the selection of an attorney? 8 In fact, the Supreme Court dismissed an Iowa case

222. 471 U.S. at 648. 223. Id. 224. Id. 225. Id. at 648-49. 226. Bates, 433 U.S. at 384; see also Zauderer, 471 U.S. at 673 n.1 (O'Connor, J. concurring in part, concurring in the judgment in part, and dissenting in part). 227. The Florida Bar: Petition to Amend Rules Regulating the Florida Bar-Advertising Issues, 571 So. 2d 451, 461 (Fla. 1990) (Television advertisements may not contain dramatizations, all information must be articulated by a single voice, and only lawyers who will be providing the advertised services may appear in the ad.); IowA CODE OF PROFSSIONAL RES- PONsmILUrY FOR LAwYERs DR 2-101(5) (West 1991) (Television advertisements for attorney services may contain no visual display except printed words articulated by a single nondramatic voice and no background sound.); NEw JERSEY RULEs OF PROFESSIONAL CoNDUcT Rule 7.2(a) (West 1991) (Television advertisements for attorney services may not contain drawings, ani- mation, dramatization, music, or lyrics.); see also Baker v. Registered Dentists of Okla., 543 F. Supp. 1177, 1181 (W.D. Okla. 1981) (striking down ban on television advertisements by attorneys but noting misleading nature of medium and suggesting abuses might be better corrected by prohibiting celebrity endorsements). 228. Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219, 1224-25 (S.D. Iowa 1981), vacated as moot, 686 F.2d 1278 (8th Cir. 1982); Florida Bar, 571 So. 2d at 457-58. Petition of Felmeistler & Isaacs, 518 A.2d 188, 201-02 (N.J. 1986); Committee on Professional Ethics v. Humphrey, 377 N.W.2d 643 (Iowa 1985), appeal dismissed, 475 U.S. 1114 (1985), reh'g denied, 476 U.S. 1165 (1986). INDIANA LAW JOURNAL [Vol. 67:663 upholding the most stringent of these restrictions for want of a substantial federal question,z29 an action that is generally treated as equivalent to a 2 0 judgment on the merits. These cases suggest a coherent argument for mandating similar restrictions for political advertising. 21 If the premise of these states' regulations is correct, restricting the use of images and dramatizations will tend to prohibit advertising that primarily exploits emotions or stylistically promotes a candidate, while permitting advertisements that tend to be informational. Cer- tainly, there is at least as strong an interest in encouraging advertising that provides information to voters in an election as to consumers of legal services. Furthermore, televised advertisements arguably are more likely to mislead voters and obfuscate issues than the print advertising protected from regulation by Zauderer; while print advertising is fixed in a tangible medium that can be studied and considered, television images are by their nature transient and therefore may be less susceptible to rational consider- 23 2 ation. Finally, a talking-heads requirement appears to be the most narrowly tailored way of prohibiting manipulative and substanceless political advertising. In Zauderer, the main reason the Court gave for striking the state's prohibition of pictures was that the state could instead regulate false and deceptive advertising on a case-by-case basis. Such case-by-case adjudication is impossible with respect to political advertising. While commercial advertising can be regulated if it has a tendency to mislead, only intentional or reckless falsity can be regulated if the speech is political. Any more comprehensive case-by-case policing of political advertising would necessarily involve repeated application of indefinite standards, which would disrupt the electoral process and deter campaign speech. The scope for permissible case-by-case adjudication is so narrow that it could not even prevent misleading and deceptive advertising, much less make advertising more informed. By contrast, a clear, uniform requirement that all advertisements

229. Humphrey, 377 N.W.2d 643, appeal dismissed, 475 U.S. 1114 (1985). Prior to this dismissal, the Court had vacated an earlier Iowa Supreme Court decision with the same result for reconsideration in-light of Zauderer. Committee on Professional Ethics v. Humphrey, 355 N.W.2d 565 (Iowa 1985), vacated, 472 U.S. 1004 (1985). 230. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975). However, such a disposition is probably not entitled to the same precedential weight as a decision on the merits. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500 (1981). In fact, one commentator has suggested that a dismissal for lack of a substantial federal question is entitled to scarcely more weight than a denial of certiorari. Winnick, Comment, The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda, 76 COLUM. L. REv. 508, 511 n.19, 518-19 (1976). 231. See Winsbro, supra note 30, at 912-16 (arguing that a talking-heads requirement for televised political advertisements is constitutional). 232. See Humphrey, 377 N.W.2d at 646. 1992] FORMAT RESTRICTIONS ON ADS be of a minimum length and contain only a candidate addressing the camera would be unambiguous and easy to administer. While the case for requiring a talking-heads format for all televised political advertising cannot be lightly dismissed, a close analysis reveals that, whatever its merits for attorney advertising, such a restriction would be intolerable for political advertising because it would sharply curtail the quantity and the communicative impact of political speech. First, it is not clear that a talking-heads requirement would necessarily permit full expo- sition of the ideas that are most crucial in an election. The idea that a war engaged in by the government is unjust or unwise, or that more environmental controls are needed, can often be expressed more vividly in images than in words.23 This is so not only because the picture conveys more emotion, but also because it more clearly evokes the reality of war or of pollution than any sterile recitation of statistics. Second, the advertisements that are common today are chosen because they are effective at attracting the attention of voters and being remembered. Many advertisements convey valuable information to voters. Others may initially attract voters' attention so that they are drawn to follow the election and perhaps investigate the issues and the candidates more closely. While few would dispute that many advertisements do not convey the information voters need, the fact that they convey any information at all or interest voters even minimally is significant. 234 If the advertisements most likely to attract attention are effectively banned, the communicative impact of the relatively dull advertisements that remain may be significantly less. 253 Fur- thermore, making advertisements less visual will be most likely to prevent advertisements from reaching those who are poor, uneducated, or illiterate, persons who already vote in disproportionate numbers. This same concern has been expressed with respect to attorney advertisements. Thus, the Model Rules and the vast majority of states permit unrestricted television ads on the theory that more information will reach people who need access to legal 2 6 services, particularly people of modest income. 1 Third, there is a possibility that such restrictions would result in significantly fewer political advertisements. 2 7 Some feel this would be beneficial because it would force candidates to reach the voters in more meaningful ways, such as by public speeches and face-to-face campaigning. 23 However,

233. See supra text accompanying notes 197-99. 234. Cf. Bates, 433 U.S. at 374 ("Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed choice."). 235. In Zauderer, for example, the attorney's illustrated advertisement generated over 200 inquiries while an unillustrated version attracted none. The Supreme Court-1984 Term, Leading Cases, 99 HAsv. L. Rav. 193, 198-99 (1985). 236. See MODEL RurEs OF PROFESSIONAL CoNDucT, Rule 7.2 comment (1983). 237. E. DiAmoND & S. BATES, supra note 2, at 383-84. 238. Id. at 384-87. INDIANA LAW JOURNAL [Vol. 67:663 a regime that could result in significantly less speech has to be regarded with some skepticism. There is some indication, for example, that the increased importance of the broadcast media in political campaigns has made the political parties more democratic, less secret, and more accountable to the public. 239 A significant reduction in the influence of political advertising might well have adverse effects on the participation and influence of the public in election campaigns. Restricting political advertising to a talking-heads format, therefore, raises significant free speech problems. It could impair the effective communication of important ideas, make advertisements less likely to reach and involve voters, and substantially reduce the overall quantity of political advertising. Such eventualities make a talking-heads restriction on political advertising both unwise and unconstitutional.

C. Disclosure and Identification Requirements

The government's interest in keeping candidates and independent groups accountable for their advertisements can best be served through narrowly tailored disclosure and identification requirements. The government has an interest in voters knowing the source of a communication so they can better judge its message. The Court has generally upheld disclosure requirements that provide valuable information to the public. 241 A valid concern is that a disclosure requirement might disparage a particular message, communicate to others that they should not give it weight, or give a false impression. In Riley v. National Federationfor the Blind,242 the Court struck down a requirement that professional fund raisers, when conducting solicitation drives, disclose at the beginning of every solicitation for a charity the average percentage of gross receipts actually turned over to the charity by the fund raisers for all charitable solicitations conducted in the state in the past year. The Court noted that such a requirement would tend to dissuade potential donors or encourage them to view the fund raisers with suspicion before the fund raiser had a chance to discuss the charity.243 More importantly, the Court observed, the required disclosure was misleading because it gave the impression that there was something corrupt about using a professional fund raiser or that a charity

239. Id. at 373. 240. See Meese v. Keene, 481 U.S. 465, 478 (1987). 241. Meese, 481 U.S. 465 (upholding statutory scheme that labeled certain materials produced by a foreign government "political propaganda"); Zauderer, 471 U.S. at 650-53 (State could require attorney advertisements to state that clients might be liable for litigation costs, even if their suit was unsuccessful.); Buckley v. Valeo, 424 U.S. 1, 60-84 (1976) (per curiam) (upholding requirement that candidates reveal size and source of contributions). 242. 487 U.S. 781 (1988). 243. Id. at 799-800. 19921 FORMAT RESTRICTIONS ON ADS received no benefit from using a professional fund raiser. Neither was necessarily true, since a professional fund raiser helped a charity in making more people aware of its activities.244 If the state was concerned with disclosing to donors that some of their donations would go to the fund raiser rather than to the charity, the Court indicated that it could accomplish this by requiring that fund raisers disclose their professional status.u 5 This doctrine indicates that the question of whether a disclosure requirement is constitutional has no talismanic answer. The Riley Court suggested one when it stated that "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech. [It is] therefore 2" ... a content-based regulation of speech." However, this statement is puzzling in light of the almost casual manner in which the Court upheld disclosure requirements in Buckley, Zauderer, and Riley. The fact that a disclosure is mandated in the context of speech cannot alone make it virtually unconstitutional per se. Rather, the outcomes of the cases suggest that a more fact-based inquiry is appropriate. If a disclosure requirement merely provides pertinent information, it should be upheld. However, if it tends to interfere with the content of the speech in such a way as to unfairly suggest that its message should be devalued or regarded with skepticism, it is more suspect. A disclosure requirement is not constitutionally troublesome because it intrudes upon the autonomy of the speaker. It is constitutionally troublesome because of the degree to which the requirement hinders the communication of information and ideas to others. Applying these criteria, the case for more stringent disclosure requirements for advertising sponsored by independent groups is fairly straightforward. The existing identification requirements are quite modest.2 7 In practice, independent groups make them so small that advertisements will sometimes be wrongly attributed to a candidate to her detriment.2" There is also the possibility that an independent group will take advantage of the group's

244. Id. at 798-99. Lower courts have similarly struck requirements that a fund raiser disclose the percentage of gross receipts that will be retained by the fund raiser on the ground that the requirements wrongly presume that a charity obtains no benefit from the money it pays to fund raisers. Indiana Voluntary Firemen's Ass'n v. Pearson, 700 F. Supp. 421, 442- 44 (S.D. Ind. 1988); People v. French, 762 P.2d 1369, 1374-75 (Colo. 1988). But see City of El Paso v. El Paso Jaycees, 758 S.W.2d 789 (Tex. App. 1988) (upholding requirement that fund raiser disclose approximate percentage of funds that will go to fund raiser). 245. Riley, 487 U.S. at 799 n.11. At least one court has upheld a state regulation to this effect. Pearson, 700 F. Supp. at 442. 246. Riley, 487 U.S. at 795. 247. 2 U.S.C. 441d(a)(3) (1988) (Ad must "clearly state the name of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee."). 248. Gaynor, Note, CurbingInjurious PAC Support Through 2 U.S.C. § 441d, 35 HASTINGs L.J. 869, 869-70, 874-76 (1984). INDIANA LAW JOURNAL [Vol. 67:663 relative anonymity to cover up its biases regarding the issue addressed by the advertisement.2 9 The Court has indicated that at times a group has a first amendment right to remain anonymous when disseminating political messages.n ° How- ever, such decisions rest on the need to protect unpopular groups from persecution.2'1 Requiring disclosure of the source of campaign materials serves the important governmental interest of providing pertinent information to voters, while still leaving open the opportunity for persecuted groups anonymously to protest the government's policies or oppressive practices through pamphleteering or other speech not connected with an election. 2 It is not surprising, therefore, that the courts have uniformly upheld the federal identification requirements for campaign advertisements. The courts have reasoned that the peculiar interest in preserving accountability in election campaigns justifies an identification requirement for campaign speech and that, in any case, groups who have access to the television media and can afford to advertise there are not the kind of groups that are so 3 subject to persecution that an absolute right to anonymity is required. 2 The specific proposals regarding independent advertising still raise constitutional problems. The requirement that the source of the message be broadcast continuously and take up a certain percentage of the screen could blunt the impact of the advertisement and distract the viewer. It also might convey implicitly to the viewer that there was something wrong with an advertisement that was not affiliated with a candidate. The government's interest in disclosing the source of the advertisements could probably be adequately accomplished by requiring a full-screen announcement at the end of the advertisement. Even better, the announcement could inform viewers that further information about the group was available by writing to or calling a specified address or number. 254 These changes would ensure that

249. In Massachusetts, for example, the utilities who control the Seabrook nuclear power plant produced television advertisements advocating nuclear power, under the purported sponsorship of the umbrella organization, the Coalition for Reliable Energy (CRE). Critics charged that the advertisements gave the false impression that CRE was a disinterested grass roots organization. See Massachusetts Lawsuit Assails Seabrook Ads, N.Y. Times, Mar. 15, 1987, at § 1, 42, col. 1. 250. Talley v. California, 362 U.S. 60 (1960) (striking state law requiring all handbills to contain name and address of person or group which prepared and distributed it); NAACP v. Alabama, 357 U.S. 449 (1958) (striking down requirement that NAACP disclose names of its members). 251. Talley, 362 U.S. at 64-65; NAACP v. Alabama, 357 U.S. at 462-63. 252. United States v. Insco, 365 F. Supp. 1308, 1312 (M.D. Fla. 1973). 253. Id.; United States v. Scott, 195 F. Supp. 440 (D.N.D. 1961). 254. Cf. Telco Communication, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989) (upholding statute requiring professional solicitors to disclose in writing that financial statements for the previous fiscal year are available from the state consumer affairs office), cert. denied, 110 S. Ct. 1923 (1990). 19921 FORMAT RESTRICTIONS ON ADS valuable information is provided to voters, without affecting the substantive content of the advertisements. The proposed requirement that the candidate appear at the beginning or end of every advertisement raises slightly different concerns. Ensuring that viewers are informed that the candidate is responsible for the advertisement could probably be accomplished by requiring a prominent picture of the candidate with a statement that the candidate or candidate's campaign 2 5 committee paid for the advertisement. 1 However, the purpose is not to identify the source of the advertisinge 6 but to link the candidate firmly to the advertisement. Research indicates that in time viewers will tend to disassociate the content of an advertisement from its source.2 7 As a result, candidates and advertisers may feel that they are not fully accountable for the advertisements. Advertisers may be more careless about making false and deceptive statements, and candidates may permit such carelessness by allowing their media advisers to distribute advertisements without personally approving them. Requiring a brief appearance by the candidate, it is thought, will encourage candidates to personally monitor advertisements that will be firmly linked to them. A candidate's campaign generally knows the most about the claims that are made; thus, increased monitoring inside the campaign will make it more likely that the statements in the advertisement will be true. It is disconcerting that the candidate identification proposal is motivated in part by hostility to negative advertising 58 However, as long as the candidate would have the option of placing the appearance at the end of the ad, it would not deter negative advertising. Most advertisements usually do refer to the favored candidate at the end after the attack on the opponent, in order to present the candidate as the resolution to the problems and dangers associated with the opponent. 9 Furthermore, the appearance would not affect the content of the advertisement any more than do the present identification requirements. The one thing the candidate would be unable to do would be to focus entirely on her opponent without conjuring up her own image. However, the interest in accountability and in ensuring that

255. 42 U.S.C. § 441d(a)(l) requires advertisements sponsored by a candidate or a campaign committee to clearly state who paid for the advertisement. However, in practice consultants often attempt to make the reference to advertising sponsorship so fleeting that most viewers might not notice it. See CAMPAIGN ADVERTIsnNG AND DISCLOSURE ACT OF 1991, supra note 94. 256. Indeed, it appears that voters are likely to assume that every advertisement endorsing a particular candidate is sponsored by the candidate. 257. M. PFAU & H. KINsKI, supra note 2, at xiii. 258. Some of the Representatives and Senators who spoke in favor of a bill containing an identification requirement argued that the bill was desirable because it would help stop negative campaigning. E.g., 137 CONG. REc. S480 (daily ed. Jan. 14, 1991) (statement of Sen. Boren); id. at 5479 (statement of Sen. Mitchell); 136 CONG. REc. H6867 (daily ed. Aug. 3, 1990) (statement of Rep. Penny); id. at H6858 (statement of Rep. Price). 259. M. KRPN, supra note 2, at 33. INDIANA LA W JOURNAL [V:ol. 67:663 voters are reminded of the importance and consequences of their decision- namely that one candidate will take the office and the others will not- would seem to justify a candidate identification requirement. In sum, disclosure and identification requirements are constitutional so long as they are narrowly tailored either to provide information to voters or to link advertisements to the candidate who authorized them. Proposals that do this, without changing the message or diminishing the effectiveness of the ads, are constitutional. Disclosure and identification requirements, however, will do little to improve the level of public debate during elections. Even if they are completely successful, they will deter, at most, false statements and inform voters as to the interests and motivations of the independent groups participating in the political process. They will not in any, way make advertising more likely to address the issues or stimulate rational political debate.

D. Free Advertising Proposals

The proposals most likely to elevate political debate are those providing candidates with free advertising on the condition that the candidates agree to conform to a talking-heads format and agree to create advertisements of a minimum length conducive to a meaningful discussion of issues. Such a proposal would not only make it more likely that issue-oriented advertising would be produced, it also could be structured in a way that would focus public and press scrutiny on free advertisements and away from paid spots. For example, Taylor argues that providing five-minute spots for each candidate alternating each night for the last four weeks of the presidential campaign would generate greater public scrutiny of what the candidate said during the five-minute spot than of the paid advertisements. 260 It would also create some expectation that the candidate would address issues during that time, thereby pressuring the candidate to do so. A successful advertising proposal could therefore change the nature of political debate during elections, although in ways that might cause candidates to prefer that it had stayed the same. This part of the Article analyzes two potential first amendment obstacles to free-advertising proposals: that the free-advertising proposal imposes an unconstitutional condition and that it unduly infringes on the editorial discretion of broadcasters.

1. Unconstitutional Conditions in Free Political Advertising

A free-advertising proposal with a talking-heads format raises an unconstitutional conditions problem because it "offers a benefit on condition that

260. P. TAYLOR, supra note 9, at 268-71. 1992] FORMAT RESTRICTIONS ON ADS the recipient perform or forgo an activity that a preferred constitutional right normally protects from government interference. ' 261 In order to obtain the free advertising, a candidate must surrender her discretion as to choice of format. This is a discretion that the government could not restrict directly. One could rather superficially argue that a free-advertising proposal does not impose an unconstitutional condition because the candidate who chooses not to accept the free advertising loses nothing other than the offered benefits. A free-advertising proposal can thus be termed an offer, rather than a threat.262 The proposal does not threaten the candidate with the loss of an interest that she already has; it merely offers her a new option, subject to conditions. One might say that the free-advertising proposal involves a nonsubsidy rather than a penalty. Providing free advertising with conditions simply reflects the government's decision to subsidize advertising that follows a certain format and not to subsidize other advertising. 263 The candidate who declines to accept the subsidy is not penalized because she did not face the loss of anything external to the declined benefit. 2 The Court's recent decision in Rust v. Sullivan 6 demonstrates that the Court sometimes succumbs to the temptation to engage in the above analysis and allows the government to restrict even the viewpoint of speech as long as the governmental regulation can be termed a decision not to fund a particular activity. Upon analysis, however, it is apparent that such distinctions among threats and offers and subsidies and penalties are inadequate to distinguish an unconstitutional condition on the acceptance of free advertising from a permissible condition. A requirement that a person who accepts funding from the National Endowment for the Arts (NEA) agree not to produce obscene art, for example, is neither a penalty nor a threat.26 Neither is a law that subsidizes the speech of all who agree to join the Democratic party.26 In both cases, the individual is not coerced into losing anything other than the subsidy itself, if they decline to accept it. Yet both are unconstitutional. The former is unconstitutional because it chills protected speech. 267 The latter is unconstitutional because the government is illegitimately using its power to advance the expression of one viewpoint 26 over another. 1 Similarly, it can hardly be imagined that the Court would also approve a regulation that forbade a legal servicet lawyer from advising a client to file an action for a breach of the warranty of habitability or of

261. Sullivan, Unconstitutional Conditions, 102 HAxv. L. REv. 1415, 1421-22 (1989). 262. See Simons, Offers, Threats, and Unconstitutional Conditions, 26 SAN DEGO L. REv. 289, 311 (1989). 263. See L. Tama, supra note 72, at § 11-5; Sullivan, supra note 261, at 1439-42, 1464-68. 264. 111 S. Ct. 1759 (1991). 265. See Bella Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991). 266. See L. TRmE, supra note 72, at § 11-5. 267. Bella Lewitzky, 754 F. Supp. at 782-83. 268. L. TRIBE, supra note 72, at § 11-5. INDIANA LA W JOURNAL [Vol. 67:663 other legal rights, even though such a regulation would be analytically difficult to distinguish from the situation in Rust. Whether a condition is constitutional, therefore, should turn not on whether the condition can be termed a decision not to subsidize a particular activity, but on the substantive effect it has on free expression. 269 A free- advertising proposal could certainly have the effect of changing the nature of political debate. Because the advertising spots would be free, candidates would likely elect to use the spots if they thought that the spots would help them in any way. Once guaranteed this free exposure, candidates might find less need for paid advertising and diminish their use of it.27o Even if a candidate would otherwise choose not to use the free advertising, they might be pressured to use it to avoid being criticized by their opponent or the press for avoiding the issues. These significant effects are all consistent with free speech. First, the free advertising would probably not reduce the total amount of speech. Indeed, if candidates continue to run paid advertisements in the same manner as before, the total amount of political speech during campaigns would be increased. The only reason that candidates might reduce the number of advertisements that they run would be if they found that the free advertisements were actually so effective at conveying their message that additional advertising was unnecessary. Second, because the restriction requires only a conventional format, it is not biased against the expression of any ideas or viewpoints. Third, requiring a talking-heads format does not require repeated intrusion into the political campaigning process or the application of vague standards that might chill speech or create a potential for arbitrary or discriminatory enforcement. A requirement that free advertising feature the candidate addressing the camera without the presence of other visuals, dramatizations, or music would be easy both to describe and to enforce. The effect that a free-advertising proposal is most likely to have, if successful, is to give an advantage, as measured against the present state

269. See Sunstein, Is There an Unconstitutional Conditions Doctrine?, 26 SAN DIEGo L. REV. 337, 338 (1989) (Whether a condition is constitutional should be a function of the constitutional right at issue, not of an independent constitutional conditions doctrine.). The Rust decision is therefore incorrect to the extent that it relies on the characterization of the regulation as a government decision not to subsidize abortion counseling. The Court's decision might better be explained either as resting on skepticism that the regulation would significantly affect the ability of a clinic doctor to give frank advice to a patient or as a sub silentio holding that the right to an abortion is so insignificant that it can be substantially regulated and restricted. 270. In economic terms, one could say that the subsidy for one commodity, advertising with restrictions, will reduce demand for unrestricted advertising, a competing commodity. The adverse effect of a subsidy on competition is evidenced by the fact that antitrust law generally prohibits "predatory pricing," or selling a product in competition below cost. III P. AREEDA & D. TURNER, ANTITRUST LAW 711 (1978). A government subsidy, however, is immune from antitrust liability. See Bates, 433 U.S. at 359-63. 1992] FORMAT RESTRICTIONS ON ADS of affairs, to candidates who are best able to articulate and defend convincing policy proposals. This is legitimate since those are among the qualities most valued in a potential leader. It would be improper for the government to prevent candidates from advocating other reasons why they should be elected. 271 However, this proposal would only give candidates an opportunity and incentive to engage in a type of advertising that tends not to be employed currently because shorter and more creative advertising is thought to be a more effective use of scarce funds and because broadcasters are reluctant to run longer advertisements. If the voters choose to ignore the free advertising and focus on the attributes and image portrayed in paid advertisements, free advertising will not impede them from doing so. How- ever, if people focus on free advertising and base their decisions on it, free advertising will provide voters with additional information relevant to their choices. In this way, free advertising is similar to public funding for campaigns, which has been upheld by the courts. 272 Assume that candidate A is able to raise a maximum of $100,000 while candidate B can only raise $50,000. The Court in Buckley held that government could not eliminate A's advantage directly by limiting its spending. 273 But it could accomplish much the same end by matching a candidate's expenditure, provided that the candidates spend no more than a certain amount. If the government sets the limit at $50,000 and then provides matching funds of up to $50,000, it eliminates A's financial advantage. Both A and B will each have $100,000. The direct expenditure limit is therefore not invalid because it infringes upon a candidate's right to outspend its opponent, for public funding infringes upon that "right" as well. Rather, the Court's decision to inval- idate the limitation can only be justified on the basis that expenditure limits curtail the access of the public to the communication of ideas and information by reducing the overall quantity of speech during election campaigns.274 Similarly, the current state of political advertising gives an advantage to the candidates who can afford to produce it and who are best able to use

271. Monitor Patriot Co. v. Roy, 401 U.S. 265, 275 (1971) ("Given the realities ot our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks."). 272. Buckley, 424 U.S. at 57 n.65; Republican Nat'l Comm. v. Federal Election Comm'n, 487 F. Supp. 280 (S.D.N.Y. 1980) (three judge court), aff'd, 445 U.S. 955 (1980). 273. Buckley, 424 U.S. at 39-59. 274. This analysis suggests that Buckley may have been incorrectly decided if it overvalued the importance of maintaining the same high volume of campaign speech and undervalued the improvement in political dialogue that could result as a result of more balanced campaign expenditures. To the extent that the Buckley Court hinged its ruling on the fact that the government was restricting or enhancing individual candidates' abilities to convey their message to voters, the decision was flawed because voluntary expenditure limits similarly alter the relative quantity of candidates' speech. INDIANA LAW JOURNAL [Vol. 67:663 its limitations to convey their message. The government cannot eliminate this advantage directly by requiring all advertisements to conform to a talking-heads format. However, the government can diminish that advantage by subsidizing advertising if candidates employ a talking-heads format. Both free advertising and public funding alter the range of choices that a candidate would otherwise have. Yet both are permissible because they help to compensate for wealth inequalities between candidates and encourage informative advertising without hampering the communicative impact of ideas and information to the voter. A free-advertising proposal with a talking-heads condition is constitutional because it advances free expression by providing additional avenues for political debate without curtailing those that already exist. It is important to reiterate that the argument being made here is not that the government can accomplish indirectly, through funding conditions, what it cannot accomplish directly by mandating a talking-heads restriction. Rather the argument is that the two proposals do two very different things. A proposal to mandate a talking-heads format for all advertisements also mandates the kind of political debate that will take place. By contrast, the free-advertising proposal merely gives candidates the opportunity to use an avenue of expression that is not used frequently because of financial constraints and the restrictions sometimes imposed by networks on the length and timing of political advertisements. Two additional objections to the free-advertising proposal can be raised. One objection is that it would tend to favor candidates who look good on television.275 A candidate's ability to use television has been important at least since the elections of 1960. It is unlikely that a free-advertising proposal mandating a talking-heads format would significantly exacerbate this phenomenon in a time where sound bites, interviews, press conferences, and candidate debates are commonplace. What it would do is give an advantage to a candidate who was interesting and dynamic in discussing issues and the future of the country. That is preferable to giving an advantage to a candidate who because of superior funding is able to hire better media advisers. A second objection is that the proposal would tend to coerce candidates to engage in a certain kind of advertising when they would rather not do so. One might be concerned that through this proposal the government would aggrandize the power to affect the nature of election debate that would otherwise be held by a candidate. However, our whole democratic system is premised on the idea that the press and the public will "coerce" the candidate to address their questions and concerns even if the candidate does not want to. Indeed, after the 1988 campaign, many argued that the

275. Dwinell, supra note 211. 1992] FORMAT RESTRICTIONS ON ADS press needed to become more aggressive about policing the accuracy of the candidates' statements and forcing them to address issues. There is no reason why the government cannot work to achieve these goals as well, as long as it does so in an evenhanded manner that minimizes the dangers posed by government intrusion. Thus far, this Article has considered a pure free-advertising and talking- heads proposal in which the advertising is free and the format restriction is conditioned on nothing other than an acceptance or rejection of the paid advertising. Under such a system, the candidate's decision of whether to use the advertising will hinge entirely on the candidate's assessment of whether the format will be helpful in "conveying a message and whether the public will listen. At least two other variations are possible and should be considered. One possibility is that the government would condition other benefits, such as public funding, on advertising that adhered to a particular format. Such a proposal would be constitutionally troublesome because the candidate's decision to use the free advertising would be motivated by external conditions other than the perceived effectiveness of the advertising. The effect of this proposal would be that a particular kind of advertising would be more prevalent simply because the government decided to encourage it. Because the advertising would be free, such a proposal would not cut off other avenues of expression; and because only a talking-heads condition would be mandated, there would be no danger that the restriction would be used to affect the message of the advertising. Therefore, such a proposal might well pass constitutional muster. The proposal is slightly more problematic, however, because it allows the government to alter the nature of political debate based on little more than the government's whim. By contrast, under the pure condition proposal, the effect on political debate is contingent only on the candidate's judgment of what the voters would want to hear. Even more troublesome would be a proposal that offered a reduced rate on advertising that adhered to a restricted format. Under this proposal, the candidate's decision to spend money on the restricted format would also reduce the amount that the candidate could spend on unrestricted advertising. Therefore, the proposal would have the effect of reducing the number of non-talking-heads advertisements and thus of curtailing an effective avenue of political expression. The candidate's decision to run the cheaper advertisements would not be motivated solely by an assessment of what was most effective, but would also be influenced by financial considerations. The least troubling free-advertising proposal is one that offers free talking- heads advertising conditioned on nothing other than accepting the advertising itself. Because a candidate's decision to use the free advertising would be influenced by nothing other than the candidate's assessment of what would be politically effective advertising, this type of proposal would provide advertising that the public wants to hear but is not receiving because of INDIANA LAW JOURNAL [Vol. 67:663 monetary constraints, broadcaster pressure for shorter advertisements, or the desire of the candidates to avoid formats that require them to address issues directly. The free-advertising proposal will affect the nature of political debate only if there is a current deficiency in the political marketplace. Other variations on talking-heads conditions are more troublesome because of the possibility that they would alter the nature of political advertising independent of public preferences as expressed through the democratic process. This Article has argued that a free-advertising proposal should be judged by the extent to which it enhances free expression, rather than by its infringement on a candidate's autonomy. If this is the standard, one might ask, why be content with merely mandating a talking-heads format? Why not go further and require the candidate to discuss issues 276 or to discuss certain issues, such as the environment or crime? It is impossible to consider the complete range of regulations that might be adopted. However, restrictions that go far beyond a talking-heads format plus a fixed minimum- length requirement would probably pose significant dangers of suppression of speech. A requirement that candidates discuss issues during free advertising, for example, would require repeated adjudications-presumably by the Federal Communications Commission (FCC)-to determine whether particular advertisements involved "issues" within the meaning of the legislation. This would delay the airing of certain advertisements, thus interfering with a campaign. Worse, the standard might be interpreted with a bias toward approving advertisements addressing conventional issues. Advertisers might choose to create advertisements that avoid controversial topics to avert a challenge to a particular advertisement. A requirement that candidates discuss certain issues is similarly problematic. At a minimum, someone would have to choose the issues. The government might attempt to prevent the discussion of controversial or embarrassing topics in an attempt to divert public attention from them.

2. Broadcaster Editorial Discretion

A final consideration is the extent to which free-advertising proposals impinge on the editorial discretion of broadcasters. A requirement that broadcasters run advertisements of certairi lengths at certain times, as some of the free-advertising proposals require, curtails the broadcasters' editorial discretion regarding the choice of programming, 27 7 and it does so more

276. See Arbogast, supra note 101 (proposing that the government condition the award of the lowest unit rate for political advertising on the candidate's agreement to run one and one- half minute advertisements in which the candidate identifies an issue, states her position on it, and explains why she holds that position). 277. See Matheson, supra note 99, at 123-25. 1992] FORMAT RESTRICTIONS ON ADS intrusively than the current reasonable access requirement. 27 However, the editorial discretion of broadcasters, like the individual speech rights of candidates, should be protected only to the extent that it contributes to informed political debate during elections in particular and to free expression values in general. 279 Currently, the exercise of unfettered editorial discretion has resulted in electoral political debate that is carried out largely through short, often substanceless commercials. Nothing in our constitutional system justifies broadcasters being able to curtail public debate in this way simply because they happen to control the airwaves. The first amendment, therefore, permits even intrusive infringements on broadcasters' editorial discretion, as long as such infringements enhance the opportunity for informed public debate during elections without diminishing the free exchange of ideas and information. The idea that editorial discretion is protected only to the extent that it promotes free expression is fully consistent with Supreme Court precedent. The Court has twice upheld significant restrictions on the editorial discretion of broadcasters on the grounds that such restrictions enhanced the public's access to information and contrasting viewpoints. In Red Lion Broadcasting Co. v. FCC, 0 the Court upheld the fairness doctrine, which granted a right of access to persons attacked in a broadcast editorial, on the grounds that it provided listeners and viewers with access to speech from a variety of sources and perspectives. In CBS v. FCC,2' the Court upheld the requirement that broadcasters provide reasonable access to candidates, noting that 2 2 it helped ensure that the airwaves were used in the public interest. 1 More importantly, decisions protecting broadcasters' editorial discretion have also evidenced a concern with the impact of this discretion on the flow of information and ideas to society.28 In FCC v. League of Women Voters,- the Court struck down a prohibition on the airing of editorials

278. 47 U.S.C. § 312(a)(7) (1988); see Kako, Note, The Right of Reasonable Access for Federal Political Candidates Under Section 312(a)(7) of the Communications Act, 78 CoLwi. L. REv. 1287 (1978). 279. See Nimmer, Introduction-IsFreedom of the Press a Redundancy: What Does It Add to Freedom of Speech?, 26 HAsTINGs L.J. 639, 653-54 (1975) (The press cannot be said to have rights of self-fulfillment or self-expression. Their rights derive from the interests of a self-governing people to hear all possible views bearing upon political decisions.). 280. 395 U.S. 367 (1969). 281. 453 U.S. 367 (1981). 282. Id. at 397. 283. 453 U.S. 367. Arguments that Red Lion is no longer good law because there is no longer spectrum scarcity do not undermine the claim that the editorial freedom of the broadcaster should be protected only to the extent to which such freedom contributes to free speech. The FCC ultimately abandoned the fairness doctrine, not because it abridged the autonomy of broadcasters, but because the agency felt that the rule undermined free speech by deterring the press from airing personal attacks. In the Matter of Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 159 (1985). 284. 468 U.S. 364, appeal dismissed, 468 U.S. 1205 (1984). INDIANA LAW JOURNAL [Vol. 67:663 by public broadcasting stations, noting that editorials were crucial to free expression because they provided the public with ideas, information, and critical judgment. 25 In CBS v. Democratic National Committee,'2 6 the Court affirmed the FCC's refusal to require broadcast licensees to accept all paid political advertisements. In doing so, the Court emphasized that the FCC decision was consistent with providing the public with a balanced presentation of viewpoints, because a first-come, first-served rule would permit those wealthy enough to afford repeated purchases of editorial spots to dominate public debate.287 Neither League of Women Voters nor CBS can be explained solely as upholding the right of broadcasters to editorial discretion. Instead, the decisions rest at least partly on the beneficial impact that the editorial discretion would have on the public's access to information and ideas. In the context of election campaigns, one can determine whether a proposed restriction on the editorial discretion of broadcasters is consistent with free speech by examining the degree to which it diminishes or enhances the role that the broadcast media plays in our system of free expression. Essentially, broadcasters carry out two functions: that of a conduit of information and ideas and that of a critic, analyzing the information provided and critiquing the viewpoints of others.2 s A free-advertising proposal undermines neither of these functions. Free- advertising proposals actually enhance the media's role as a conduit by providing the public with longer and more issue-oriented advertisements that might otherwise not be aired. Some possible restrictions on editorial discretion could undermine the media's role as a conduit. A contingent access requirement, such as that formerly proposed by Senators Hollings and Danforth,' 8 9 might dissuade broadcasters from airing advertisements to avoid triggering the access requirements 290 and deter groups from airing the attacks to avoid giving the disfavored candidate free air time. 29 Similarly, restric-

285. Id. at 382. 286. 412 U.S. 94 (1973). 287. Id. at 123. 288. For other formulations of the free speech functions served by the press, see Barron, Access to the Press-A New First Amendment Right, 80 Hv. L. REv. 1641, 1653-56 (1967) (Free expression requires that media allow expression of ideas that would otherwise not be aired before the public.); Nimmer, supra note 279, at 653-58 (The press helps preserve a democratic dialogue by providing information and opposing viewpoints to the public.). 289. S. 999, 101st Cong., 1st Sess. § 2 (1989) (A candidate who is attacked by independent advertisements would receive free response time of equal length.). For analysis of this provision, compare Matheson, supra note 99, at 129 (arguing provision is unconstitutional) with Clinger, Note, The Clean Campaign Act of 1985, 3 J.L. & POL. 727 (1987) (arguing provision is constitutional). 290. Matheson, supra note 99, at 129; see also L. Bollinger, Freedom of the Press and Public Access: Toward a Theory of PartialRegulation of the Mass Media, 75 MIcH. L. REv. 1, 29 (1976). 291. Matheson, supra note 99, at 93. 1992] FORMAT RESTRICTIONS ON ADS tions that prevented the media from providing certain information or viewpoints or that displaced a substantial portion of broadcast programming with programming mandated by the government would undermine the media's role as a conduit by curtailing the ideas and information that it provided to the public. Free-advertising proposals do not present this problem because they provide the public with more information relating to election campaigns without significantly reducing the flow of information provided through a broadcaster's regular programming. Even the most ambitious of the free-advertising proposals would only consume a few hours of air time each year.292 As long as the length was five minutes or less, such advertising could fit in between programs. 293 Free advertising proposals also do not diminish the media's critical function. The restriction struck down in League of Women Voters diminished the critical function by depriving broadcasters of one of their primary tools of critical analysis. The same would be true for any restriction on television's ability to provide news and news analysis. Free-advertising proposals leave the broadcast media completely free to continue its analysis and criticism of the election. A regulation that diminished the broadcaster's choice of programming to such a degree that the government was in fact determining the nature and content of programming would also threaten the broadcast media's critical function. Such a regulation would give the government the power to control the agenda of public discussion by controlling the nature of ideas and information disseminated to the public. Free advertising does not raise this concern because the government is only requiring political discussion; it is not dictating the content of that discussion. Finally, a government regulation that so entangles the media with the government that it gives the government the power to influence the content of broadcast news and programming threatens the critical function of the broadcast media. The most obvious example would be direct censorship. A less obvious example would be a symbiotic regulatory regime in which the government and broadcasters were constantly interacting on a variety of issues. Such a system could make the broadcast media reluctant to threaten the government lest the government retaliate by exercising its regulatory power in a way that injures the media actor.29 To some extent, this government entanglement in the broadcast industry may already exist. In any case, a free-advertising proposal certainly does not exacerbate it. As previously discussed, a rule that required the broadcast of advertisements of certain length at certain times is easy both to describe and to enforce.

292. L. SABATO, supra note 4, at 31. 293. An effective free-advertising proposal should probably not require advertisements longer than five minutes because longer advertisements tend to lose their audience. Id. at 34. 294. See Bollinger, supra note 290, at 29-31. INDIANA LA W JOURNAL [Vol. 67:663

It does not require continuing supervision and enforcement by the government. In sum, the free-advertising proposals do not infringe either the autonomy of candidates or the editorial discretion of broadcasters in ways that diminish free speech values. In fact, they enhance such values by providing voters with potentially valuable, issue-oriented advertising. Therefore, free-advertising proposals are consistent with the first amendment.

CONCLUSION

It is an interesting paradox of our constitutional system that a society so dedicated to democratic decision making is virtually alone among industrialized democracies in taking no regulatory steps to improve the level of public debate during elections. The apparent premise behind this hands-off approach is that enlightened public debate is best achieved through an absence of government regulation. However, an analysis of both the nature of contemporary political advertising and of free speech principles reveals that this assumption is unrealistic. Government not only can, but it should take affirmative steps to improve the level of public debate during elections. It is irrelevant that such restrictions infringe on the autonomy of candidates and broadcasters. The predominant concern should be to create opportunities for more informed public debate. That being said, however, one cannot countenance format restrictions on political advertising based on nothing more than a congressional finding that such restrictions will elevate political debate. The healthy fear we should have that restrictions might be imposed by the government to serve its own ends, as well as the subtle and multifaceted nature of televised communication, mandates a rigorous analysis of proposed format restrictions to determine whether they enhance or diminish free expression. This analysis can be accomplished by examining format restrictions in light of their effect on the communicative impact and quantity of campaign speech, as well as by examining the potential that the restrictions will be used to suppress disfavored ideas. Applying this analysis to proposed format restrictions reveals that the scope of permissible restrictions is modest. Proposals that restrict the permissible formats for political advertising endanger free speech because they would blunt the impact of advertising that is highly effective at communicating ideas and information to voters. The most promising use of format restrictions is to provide information and discussions to voters that would otherwise not be aired. This can be accomplished by disclosure requirements or, most effectively, by providing free advertising to candidates on the condition that the candidates produce advertising that conforms to an issue-oriented format. In addition, identification requirements can make 1992] FORMAT RESTRICTIONS ON ADS 717 candidates more accountable for their advertising and thus more careful about its content. The relative modesty of permissible reforms should not obscure their significance. The free-advertising proposals, if properly structured, may create pressures and expectations that can make campaigns more substantive. Furthermore, the restrictions illustrate that society need not simply accept substance-free campaigns as the inevitable outcome of freedom of speech. By carefully considering the effects of regulation on free speech values, government can fashion regulations that create opportunities for the rational political dialogue that is necessary for the proper functioning of our democratic system of government.